Form 10-Q/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
QUARTERLY REPORT UNDER SECTION 13 OF 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended July 1, 1995 Commission File Number 0-1989
Seneca Foods Corporation
(Exact name of registrant as specified in its charter)
New York 16-0733425
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
1162 Pittsford-Victor Road, Pittsford, New York 14534
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 716/385-9500
Not Applicable
Former name, former address and former fiscal year,
if changed since last report
Check mark indicates whether registrant (1) has filed all reports required to be
filed by Section 13 of 15(d) of the Securities Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days.
Yes X No
The number of shares outstanding of each of the issuer's classes of common stock
at the latest practical date are:
Class Shares Outstanding at July 31, 1995
Common Stock, $.25 Par 2,796,555
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit 3.1 - (3.1) Restated Certificate of
Incorporation, as Amended dated August 5, 1995 is
attached as Exhibit 3.1.
(b) Exhibit 3.2 - (3.2) Certificate of Amendment of the
Certificate of Incorporation is attached as Exhibit
3.2.
(c) Exhibit 3.3 - (3.3) By-Laws of Seneca Foods
Corporation is attached as Exhibit 3.3.
(d) Exhibit 4 - (4) For instruments defining rights of
security holders including indentures refer to Item
6(a) above and Exhibits 3.1 to 3.3.
(e) Exhibit 11 - (11) Computation of earnings per share
(f) Exhibit 27 - (27) Financial Data Schedules
(g) Reports on Form 8-K - None during the quarter.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Seneca Foods Corporation
(Registrant)
/s/Kraig H. Kayser
_______________________
August 18, 1995 Kraig H. Kayser
President and
Chief Executive Officer
/s/Jeffrey L. Van Riper
_______________________
August 18, 1995 Jeffrey L. Van Riper
Controller and
Chief Accounting Officer
<PAGE>
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
SENECA FOODS CORPORATION
The following is a composite copy of the Restated Certificate
of Incorporation, as amended, of Seneca Foods Corporation, which was prepared
for the purpose of filing as an Exhibit with the Securities and Exchange
Commission:
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
SENECA FOODS CORPORATION
<PAGE>
- 34 -
The name of the Corporation is SENECA FOODS
CORPORATION.
The purposes for which it is formed are:
To buy, sell, trade, acquire and otherwise deal in grapes, all other fruits,
vegetables and all other farm products, meats, poultry and all other produce or
products suitable for human or animal consumption; to press, cook, evaporate,
concentrate and by any and all other processes to remove, extract or break down
the contents thereof; to bottle, freeze, can, pack, box, preserve or otherwise
prepare, render, manufacture part or all the contents thereof; to prepare and
manufacture grape juice and other fruit juices, extracts, jellies and all other
fruit products, vegetable products, meat products and farm products, soft
drinks, extracts and all other types of products manufactured wholly or partly
from such items; to sell, distribute at wholesale or retail, in bulk or
otherwise, all products so manufactured and their by-products, to warehouse or
contract to warehouse any of the products so prepared.
To own, acquire, lease, rent or otherwise obtain and maintain factories,
machinery, refrigeration equipment, presses and all other forms of machinery
suitable and useful for the preparation thereof.
To maintain warehouses, storage facilities, refrigeration units and generally
cold storage facilities for the purposes hereof.
To buy, sell, manufacture and deal in ice; to maintain refrigerators for frozen
products and to conduct in general a cold storage business; to lease or rent
cold storage facilities to others.
To own, rent, lease and operate farm lands from which to produce and raise such
aforementioned items; to sell, furnish and supply farmers, breeders and
producers with seeds, plants, feed and other equipment and facilities to plant,
grow or raise such items.
To buy, sell, acquire and otherwise deal in and trade in futures for the purpose
of acquiring the necessary fruits, vegetables, meats and products to conduct
such business.
To purchase, acquire, manufacture, hold, improve, sell, let and lease real and
personal property of all kinds, including but not limited to lands, leaseholds,
shares of stock, mortgages, bonds, debentures or other securities, xmerchandise,
notes, certificates of indebtedness, book debts, claims, copyrights, trademarks,
trade names, brands, labels, patents, patent rights, franchises, licenses,
grants, concessions, good will and any interest in real or personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, stock in trade, franchises, rights, assets and
property, and to undertake or assume the whole or any part of the obligations
or liabilities of any person, firm, association or corporation engaged in
the same or similar business.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage, or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this Corporation.
To purchase, hold, use, sell, assign, transfer, mortgage, pledge or otherwise
dispose of the shares of the capital stock of, or any bonds, securities or
evidences of indebtedness created by any other corporation or corporations
organized under the laws of this state or any other state, country, nation or
government and while the owner thereof to exercise all the rights, powers and
privileges of ownership.
To borrow money and to make, accept, endorse and issue promissory notes, bonds,
debentures, or other obligations of this Corporation from time to time for any
of the objects or purposes of the Corporation and to secure the same by
mortgage, pledge, deed of trust, or otherwise.
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its
own shares of capital stock when such use would cause any impairment of its
capital stock except as otherwise permitted by law; and provided further
that shares of its own capital stock belonging to it shall not be voted
upon directly or indirectly.
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or
otherwise dispose of real and personal property of every class and description
in any of the states, districts, territories or colonies of the United
States, and in any and all foreign countries, subject to the laws of such
state, district, territory, colony or country.
To buy, own, operate, maintain and trade in trucks, buses, automobiles, boats,
aircraft, tractors, trailers and any and all other types of vehicles, equipment
and rolling stock necessary or useful in carrying out the foregoing purposes.
To employ all personnel, to enter into agency or independent contractor
relationships, to designate distributors, to obtain any or all
scientific skills and professional services necessary or useful in
carrying out the foregoing purposes.
In general, to carry on any other similar business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
New York upon corporations formed under the Business Corporation Law, and to do
any or all of the things hereinbefore set forth to the same extent as natural
persons might or could do.
The foregoing clauses shall be construed both as objects and powers, and it is
hereby expressly provided that the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the powers of this
corporation.
The Capital Stock of the Corporation shall consist of ten million (10,000,000)
shares of Class A Common Stock of the par value of $0.25 each; ten million
(10,000,000) shares of Class B Common Stock of the par value of $0.25 each;
two hundred thousand (200,000) shares of Six Percent (6%) Voting Cumulative
Preferred Stock of the par value of $0.25 each; thirty thousand (30,000)
shares of Preferred Stock Without Par Value, to be issued in series by the
Board of Directors, pursuant to the provisions of Article 4, Section (c)
hereof, subject to the limitations prescribed by law; and four million
(4,000,000) shares of Preferred Stock with $.025 par value, Class A, to be
issued by the Board of Directors pursuant to the provisions of Article 4,
Section (d) hereof, subject to the limitations prescribed by law. The
stated capital of the Corporation as determined pursuant to Section 506
of the Business Corporation Law shall be increased by one million one hundred
eighty thousand four hundred ninety three dollars ($1,180,493) and such increase
shall be allocated equally to the stated capital in respect of the Corporation's
$0.25 par value Class A Common Stock and Class B Common Stock.
The designations, preferences, privileges and voting powers of the shares of
each class of stock which the Corporation is authorized to issue, and the
restrictions or qualifications thereof, shall be as follows:
(a) Class A Common Stock and Class B Common Stock.
(A) Provisions Applicable to Class A Common Stock and Class B Common Stock.
(i) The holders of record of Class A Common Stock and
the holders of record of Class B Common Stock shall have equal
rights and rank per share with respect to any and all
dividends and distributions declared on the common stock of
the Corporation, and no dividend or distribution shall be
declared or made with respect to either Class A Common Stock
or Class B Common Stock unless that dividend or distribution
is declared and made with respect to both such classes; except
that (subject to conversion rights of any preferred stocks) a
dividend or distribution upon Class A Common Stock which will
be paid in shares of common stock of the Corporation shall be
declared and made only in shares of Class A Common Stock and a
dividend or distribution upon Class B Common Stock which will
be paid in shares of common stock of the Corporation shall be
declared and made only in shares of Class B Common Stock, and
if a dividend or distribution is so declared and paid in
shares of one class of common stock to the holder of each
share of that class, a per-share dividend or distribution in
an equal number of shares of the other class of common stock
shall be concurrently declared and paid to the holder of each
share of such other class, so that the number of shares of
Class A Common Stock paid as a dividend or distribution on a
share of Class A Common Stock shall be equal to the number of
shares of Class B Common Stock paid as a dividend or
distribution on a share of Class B Common Stock.
(ii) In the event of any voluntary or
involuntary liquidation, dissolution or any winding up of the
Corporation, each share of Class A Common Stock and Class B
Common Stock shall rank equally with respect to any
distribution to be received by holders of common stock upon or
with respect to liquidation, dissolution or winding up.
(B) Provisions Applicable to Class A Common Stock.
(i) The holders of Class A Common Stock are
entitled to one-twentieth (1/20th) of one vote per share on
all questions presented to the stockholders. In all elections
of directors of the Corporation, each holder of Class A Common
Stock shall have the right to vote in person or by proxy
one-twentieth (1/20th) of one vote for each share of Class A
Common Stock held by such holder for as many Persons as there
are directors to be elected. No cumulative voting for
directors shall be permitted.
Any provision of the Certificate of Incorporation
or By-laws of the Corporation requiring the affirmative vote
of a specified percentage of shares of the Corporation shall
be read to give effect to the lesser voting rights of the
holders of Class A Common Stock as described above;
specifically, a provision that the affirmative vote of a
specified percentage of the shares of the Corporation is
required shall require the affirmative vote of the holders of
that percentage of the aggregate voting power of the
Corporation.
The holders of Class A Common Stock are entitled to
vote as a separate class (i) on any proposal to amend the
Corporation's Certificate of Incorporation to increase the
authorized number of shares of Class B Common Stock, unless
the increased authorization does not exceed the number of
shares of Class B Common Stock which must be issued in a
proposed stock dividend with respect to shares of Class B
Common Stock and which conforms to the requirements set forth
in this Article with respect to payment of dividends in stock
of this Corporation upon shares of Class B Common Stock and
Class A Common Stock and (ii) as required by applicable law.
(ii) The Class A Common Stock is not
convertible into shares of Class B Common Stock, unless the
number of outstanding shares of Class B Common Stock falls
below 5% of the aggregate number of outstanding shares of
Class B Common Stock and Class A Common Stock. At such time,
all of the outstanding Class A Common Stock will be converted
automatically into shares of Class B Common Stock on a
share-for-share basis. For purposes of this Article
4(a)(B)(ii), "outstanding" shares of Common Stock would not
include shares of Class B Common Stock or shares of Class A
Common Stock repurchased by the Corporation and not reissued.
(C) Provisions Applicable to Class B Common Stock.
(i) Except as provided in paragraph (C)(ii)
of this Article 4(a), the holders of Class B Common Stock are
entitled to one vote per share on all questions presented to
the stockholders. In all elections of directors of the
Corporation, each holder of Class B Common Stock shall have
the right to vote in person or by proxy the number of shares
of Class B Common Stock held by such holder for as many
Persons as there are directors to be elected. No cumulative
voting for directors shall be permitted. The holders of Class
B Common Stock are entitled to vote as a separate class where
required by applicable law. If any share of Class B Common
Stock is ineligible to vote by reason of the limitations
contained in paragraph (c)(ii) of this Article 4(a), that
share will be excluded from the determination of the total
shares eligible to vote for any purpose for which a vote of
shareholders is taken.
(ii) The voting rights of holders of shares
of Class B Common Stock are subject to the following
restrictions: If a Person acquires more than 15% (the "15%
Threshold Amount") of the outstanding Class B Common Stock
after August 5, 1995 (the "Threshold Date") and does not
acquire after the Threshold Date a percentage of the Class A
Common Stock outstanding at least equal to the percentage of
Class B Common Stock acquired by that Person after the
Threshold Date in excess of the 15% Threshold Amount, such
Person will not be allowed to vote shares of Class B Common
Stock acquired after the Threshold Date in excess of the 15%
Threshold Amount. The inability of the Person to vote the
shares of Class B Common Stock in excess of the 15% Threshold
Amount will continue until such time as a sufficient number of
shares of Class A Common Stock have been acquired by the
Person.
For purposes of calculating the 15% Threshold
Amount, the following acquisitions and increases shall be
excluded: (i) shares of Class B Common Stock held by any
Person on the Threshold Date, (ii) an increase in a holder's
percentage ownership of Class B Common Stock resulting solely
from a change in the total number of shares of Class B Common
Stock outstanding as a result of a repurchase of Class B
Common Stock by the Corporation since the last date on which
that holder acquired Class B Common Stock, (iii) acquisitions
of Class B Common Stock (1) made pursuant to contracts
existing prior to the Threshold Date, including the
acquisition of Class B Common Stock pursuant to the conversion
provisions of Class A Preferred Stock outstanding prior to the
Threshold Date, (2) by bequest or inheritance, or by operation
of law upon the death or incompetency of any individual and
(3) by any other transfer made without valuable consideration,
in good faith and not for the purpose of circumventing the
restrictions imposed by the 15% Threshold Amount. A gift made
to any Person who is related to the donor by blood or
marriage, a gift made to a charitable organization qualified
under Section 501(c)(3) of the Internal Revenue Code of 1986
or a successor provision and a gift to a Person who is a
fiduciary solely for the benefit of, or which is owned
entirely by, one or more of the following persons or entities:
(1) a person who is related to the donor by blood or
marriage, or
(2) a charitable organization which is qualified under
Section 501(c)(3) as described above
shall be presumed to be made in good faith and not for
purposes of circumventing the restrictions imposed by the 15%
Threshold Amount.
Acquisitions of Class A Common Stock so as to
preclude the effect of the voting restrictions contained in
the preceding paragraph must be made for an "equitable price."
For purposes of this paragraph an "equitable price" is deemed
to have been paid only when the shares of Class A Common Stock
have been acquired at a price at least equal to the greater of
(i) the highest per share price paid by the acquiring Person,
in cash or non-cash consideration, for any Class B Common
Stock acquired within the 60-day periods preceding and
following the acquisition of the Class A Common Stock or (ii)
the highest closing market sale price of Class B Common Stock
during the 30-day periods preceding and following the
acquisition of the Class A Common Stock. The value of any
non-cash consideration will be determined by the Board of
Directors acting in good faith. The highest closing market
sale price of a share of Class B Common Stock will be the
highest closing sale price reported by the principal trading
market for either class of Common Stock.
As used in this Article 4(a)(C)(ii):
"Person" shall include one or more persons
and entities who act or agree to act in concert with
respect to the acquisition or disposition of Class B
Common Stock or with respect to proposing or
effecting a plan or proposal to (a) a merger,
reorganization or liquidation of the Corporation or a
sale of a material amount of its assets, (b) a change
in the Corporation's Board of Directors or
management, including any plans or proposal to fill
vacancies on the Board of Directors or change the
number or term of Directors, (c) a material change in
the business or corporate structure of the
Corporation, or (d) any material change in the
capitalization or dividend policy of the Corporation.
As used in the preceding sentence, "act or agree to
act in concert" shall not include acts or agreements
to act by persons pursuant to their official
capacities as Directors or officers of the
Corporation or because they are related by blood or
marriage.
Each reference to acquiring or acquisition
of Class B Common Stock and Class A Common Stock
shall include direct and indirect acquisitions of
such stock.
(iii) The holders of Class B Common Stock
shall have the right, at their option, to convert such shares
into shares of Class A Common Stock at any time after the
issuance thereof, on a share-per-share basis. The conversion
rights in the preceding sentence shall expire upon the
occurrence of the automatic conversion of all outstanding
shares of Class A Common Stock into Class B Common Stock
pursuant to the provisions of paragraph (B)(ii) of this
Article 4(a). In order to convert shares of Class B Common
Stock into shares of Class A Common Stock, the holder thereof
shall surrender at the office of the Corporation the
certificate or certificates therefor, duly endorsed to the
Corporation or in blank, and give written notice at such
office that he elects to convert such shares of Class B Common
Stock which shall be deemed to have been converted as of the
date (hereinafter called the "Class A Conversion Date") of the
surrender of such shares for conversion as provided above, and
the person or persons entitled to receive the shares of Class
A Common Stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Class
A Common Stock on such date. As soon as practicable on or
after the Class A Conversion Date, the Corporation will
deliver at such office a certificate or certificates for the
number of shares of Class A Common Stock issuable on such
conversion.
(b)Six Percent (6%) Voting Cumulative Preferred Stock.
(A) The holders of record of Six Percent
(6%) Voting Cumulative Preferred Stock shall be entitled to
cash dividends when and as declared by the Board of Directors
at the rate of six percent (6%) of the par value per share per
annum and no more, payable on the first days of January and
July in each year in preference to and in priority over
dividends upon the common stock and all other shares junior to
the Six Percent (6%) Voting Cumulative Preferred Stock. Such
cash dividends on the Six Percent (6%) Voting Cumulative
Preferred Stock are to be cumulative so that, if for any year
or years cash dividends at the rate of six percent (6%) per
share per annum are not declared and paid or set apart for
payment on such Six Percent (6%) Voting Cumulative Preferred
Stock outstanding, the deficiency shall be declared and paid
or set apart for payment prior to the making of any dividend
or other distribution on the common stock, such cash dividends
on the Six Percent (6%) Voting Cumulative Preferred Stock to
accrue from the date of issue if that be a dividend date,
otherwise from the dividend date next preceding the date of
issue of such Six Percent (6%) Voting Cumulative Preferred
Stock. Upon the payment or setting apart for payment of all
dividends current and accumulated at the rate of six percent
(6%) per annum upon the Six Percent (6%) Voting Cumulative
Preferred Stock, the directors may declare and pay dividends
in order of priority upon shares junior to the said Six
Percent (6%) Voting Cumulative Preferred Stock.
(B) In the event of any voluntary or
involuntary liquidation, dissolution or any winding up of the
Corporation, the holders of record of the Six Percent (6%)
Voting Cumulative Preferred Stock shall be entitled to be paid
the full par value of such issue of Preferred Stock plus
accumulated dividends thereon to the date of such liquidation,
dissolution or winding up of the Corporation, whether or not
the Corporation shall have a surplus or earnings available for
dividends, and no more before any distribution of any assets
shall be made to the holders of any class of common stock or
other shares junior to the Six Percent (6%) Voting Cumulative
Preferred Stock.
(C) The Corporation at its option may redeem
the whole or any part, pro rata or by lot, of the Six Percent
(6%) Voting Cumulative Preferred Stock outstanding at any time
by paying therefor in cash one hundred percent (100%) of the
par value thereof plus accumulated dividends thereon to the
date fixed for such redemption by mailing notice of such
redemption to the holders of such Six Percent (6%) Voting
Cumulative Preferred Stock to be redeemed at their respective
addresses as such addresses may appear on the stock books of
the Corporation, specifying the time and place of redemption
at the office of the Corporation, such notice to be mailed at
least thirty (30) days and not more than sixty (60) days prior
to the date specified therein for redemption.
(D) In all elections of directors of the
Corporation, each holder of Six Percent (6%) Voting Cumulative
Preferred Stock shall have the right to vote in person or by
proxy the number of shares of Six Percent (6%) Voting
Cumulative Preferred Stock held by him for as many Persons as
there are directors to be elected. No cumulative voting for
directors shall be permitted.
(E) A class of stock shall be deemed to be
"junior to the Six Percent (6%) Voting Cumulative Preferred
Stock" if the Six Percent (6%) Voting Cumulative Preferred
Stock has priority over such class with respect to dividend
rights or liquidation rights.
(c) Preferred Stock Without Par Value.
(A) The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of
this paragraph, to provide for the issuance in series of the
shares of Preferred Stock Without Par Value, and by filing a
certificate pursuant to the Business Corporation Law, to
establish the number of shares to be included in each such
series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series
whether or not such relative rights, preferences and
limitations of such series shall be fixed as senior to, junior
to, or on a parity with the relative rights, preferences and
limitations of any other class of stock or series thereof, and
to reclassify or alter the designation, relative rights,
preferences and limitations of any authorized and unissued
Preferred Stock Without Par Value whether or not such shares
shall have been designated as shares of any particular series
and whether or not such relative rights, preferences and
limitations of such series shall be fixed as senior to, junior
to, or on a parity with the relative rights, preferences and
limitations of any other class of stock or series thereof. The
authority of the Board with respect to each series shall
include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series
and the distinctive designation of that series;
(ii) The rate and times at which, and the terms
and conditions on which, dividends, if any, on shares of such
series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting
rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights;
(iv) Whether that series shall have conversion
privileges, and, if so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(v) Whether or not the shares of that series shall
be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) The rights of the shares of that series in
the event of voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding up of the Corporation; and
(vii) Any other relative rights, preferences and
limitations of that series.
The authority of the Board of Directors with
respect to each such series shall be limited by the condition
that no series of the shares of any series so authorized by
the Board of Directors to be issued shall rank as to the
payment of dividends or rights on liquidation, dissolution or
winding up of the Corporation senior to the shares of any
previously authorized series or of any other class of
Preferred Stock without an affirmative vote of a majority of
the holders of each such series or class of stock.
(B) Dividends on outstanding shares of
Preferred Stock Without Par Value shall be declared and paid,
or set apart for payment, before any dividends shall be
declared and paid, or set apart for payment, on any class of
common stock with respect to the same dividend period. If the
stated dividends on the shares of all series of Preferred
Stock Without Par Value are not paid in full, the shares of
all series of such class shall share ratably in the payment of
dividends including accumulation, if any, in accordance with
the sums which would be payable on such shares if all
dividends were declared and paid in full.
(C) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of each series of Preferred
Stock Without Par Value then outstanding shall be entitled to
receive out of the assets of the Corporation, before any
distribution or payment shall be made to the holders of any
class of common stock, an amount equal to the stated value of
the stock plus, in respect of each share with respect to which
dividends are cumulative, a sum computed at the dividend rate
provided for in the Certificate of Incorporation from and
after the date on which dividends on such shares became
cumulative to and including the date fixed for such payment,
less the aggregate of the dividends theretofore paid thereon,
but computed without interest. If the amounts payable on
liquidation in respect to the shares of all series of
Preferred Stock Without Par Value are not paid in full, the
shares of all series of such class shall share ratably in any
distribution of assets other than by way of dividends in
accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full. If
such payment shall have been made in full to the holders of
all shares of Preferred Stock Without Par Value on voluntary
or involuntary liquidation, dissolution or winding up, the
remaining assets of the Corporation shall be distributed in
accordance with Section (d)(C) of this Article 4. For the
purpose of this paragraph, a consolidation or merger of the
Corporation with one or more other corporations shall not be
deemed to be a liquidation or winding up of the Corporation.
(d) Preferred Stock With $.025 Par Value, Class A.
(A) The Board of Directors is authorized,
subject to the limitations prescribed by law and the
provisions of this paragraph, to provide for the issuance in
series of the shares of Preferred Stock With $.025 Par Value,
Class A (hereinafter called "Class A Preferred Stock"), and by
filing a certificate pursuant to the Business Corporation Law,
to establish the number of shares to be included in each such
series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series.
The authority of the Board with respect to each series shall
include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series
and the distinctive designation of that series;
(ii) The rate and times at which, and the terms
and conditions on which, dividends, if any, on shares of such
series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting
rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights;
(iv) Whether that series shall have conversion
privileges, and, it so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(v) Whether or not the shares of that series shall
be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) The rights of the shares of that series in
the event of voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding up of the Corporation; and
(vii) Any other relative rights, preferences and
limitations of that series.
The authority of the Board of Directors shall be
limited by the condition that the shares of each series of
Class A Preferred Stock authorized by the Board of Directors
to be issued shall rank, as to the payment of dividends or
rights on liquidation, dissolution or winding up of the
Corporation, junior to the shares of any authorized class of
Preferred Stock.
(B) Dividends on outstanding shares of Class
A Preferred Stock shall be declared and paid, or set apart for
payment, before any dividends shall be declared and paid, or
set apart for payment, on any class of common stock with
respect to the same dividend period. It the stated dividends
on the shares of all series of Class A Preferred Stock are not
paid in full, the shares of all series of such class shall
share ratably in the payment of dividends including
accumulation, if any, in accordance with the sums which would
be payable on such shares if all dividends were declared and
paid in full.
(C) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of each series of Class A
Preferred Stock then outstanding shall be entitled to receive
out of the assets of the Corporation, before any distribution
or payment shall be made to the holders of any class of common
stock, an amount equal to the stated value of the stock plus,
in respect of each share with respect to which dividends are
cumulative, a sum computed at the dividend rate provided for
in the Certificate of Incorporation from and after the date on
which dividends on such shares became cumulative to and
including the date fixed for such payment, less the aggregate
of the dividends theretofore paid thereon, but computed
without interest. If the amounts payable on liquidation in
respect to the shares of all series of Class A Preferred Stock
are not paid in full, the shares of all series of such class
shall share ratably in any distribution of assets other than
by way of dividends in accordance with the sums which would be
payable in such distribution if all sums payable were
discharged in full. If such payment shall have been made in
full to the holders of all shares of Class A Preferred Stock
on voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the remaining assets of the
Corporation shall be distributed among the holders of each
class of common stock pro rata in accordance with their
respective holdings. For the purpose of this paragraph, a
consolidation or merger of the Corporation with one or more
other corporations shall not be deemed to be a liquidation or
winding up of the Corporation.
(D) First Series of Class A Preferred Stock.
The first series of 1,000,000 shares of Class A Preferred
Stock shall be designated Ten Percent (10%) Cumulative
Convertible Voting Preferred Stock3/4Series A, $0.25 stated
value (hereinafter called "10% Voting Preferred Stock"), and
shall have the following rights, preferences and limitations:
(i) Dividends. The holders of the 10% Voting
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, but only out of surplus
legally available for the payment of dividends, cumulative
cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July,
commencing January l, 1984. Such dividends shall be payable
after all past and current dividends on the Six Percent (6%)
Voting Cumulative Preferred Stock and the Preferred Stock
Without Par Value have been declared and paid, or a sum
sufficient therefor has been set aside for that purpose, and
before any dividends (other than a stock dividend in shares of
the same class of stock) on any class of common stock shall be
paid or set apart for payment or any shares of such stock
shall be acquired for consideration. Dividends shall be
cumulative from and after the date of issue of such shares,
but any arrearages in payment shall not bear interest.
(ii) Redemption. Provided that dividends on the
Six Percent (6%) Voting Cumulative Preferred Stock and the
Preferred Stock Without Par Value have been paid or a sum set
aside for payment, the Corporation, at the option of the Board
of Directors, may redeem all or any part of the 10% Voting
Preferred Stock at any time outstanding, at any time or from
time to time, upon notice duly given as hereinafter provided
for an amount in respect of each share to be redeemed equal to
the sum of $0.25 and an amount computed at the annual rate of
$.025 per annum per share from and after the date on which
dividends on such share became cumulative to and including the
date fixed for such redemption, less the aggregate of the
dividends theretofore and on such redemption date paid, but
computed without interest.
Notice of every such redemption of 10% Voting
Preferred Stock shall be mailed at least thirty (30) days
prior to the date fixed for such redemption to the holders of
record of shares so to be redeemed at their respective
addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the 10%
Voting Preferred Stock at the time outstanding, the shares to
be redeemed shall be selected in such manner as the Board of
Directors may determine, whether by lot or by pro rata
redemption or by selection of particular shares, and the
proceedings and actions of the Board of Directors in this
connection shall not be subject to attack except for fraud.
(iii) Voting. The holders of 10% Voting Preferred
Stock shall be entitled to one vote for each share of such
stock on all questions presented to the stockholders of the
Corporation.
(iv) Conversion. The holders of 10% Voting
Preferred Stock shall have the right, at their option, to
convert such shares into shares of common stock, $0.25 par
value, at any time after the issuance thereof, on and subject
to the following terms and conditions:
(a) The 10% Voting Preferred Stock shall be
convertible, at the office of the
Corporation or at such other office or
offices, if any, as the Board of Directors
may designate, into fully paid and
non-assessable shares of Class A Common
Stock and Class B Common Stock (calculated
as to each conversion to the nearest 1/10 of
a share) at the conversion rate, determined
as hereinafter provided, in effect at the
time of conversion. The conversion rate
shall be one (l) share of Class A Common
Stock and one (1) share of Class B Common
Stock for every twenty (20) shares of 10%
Voting Preferred Stock. In case the
Corporation shall at any time subdivide its
outstanding shares of common stock into a
greater number of shares or shall pay in
shares of common stock a dividend on then
outstanding shares of common stock, the
number of shares of common stock into which
the 10% Voting Preferred Stock is
convertible shall be proportionately
increased and, conversely, in case the
Corporation shall at any time combine its
outstanding shares of common stock into a
smaller number of shares, the number of
shares of common stock into which the 10%
Voting Preferred Stock is convertible shall
be proportionately reduced. If any capital
reorganization or reclassification of the
capital stock of the Corporation, or any
consolidation or merger of the Corporation
with another corporation, shall be effected,
the holder of 10% Voting Preferred Stock
shall thereafter be entitled upon the
exercise of conversion rights to receive the
number and kind of shares of stock,
securities or assets which the holder would
have been entitled to receive in connection
with such reorganization, recapitalization,
merger or consolidation if he had been a
holder of the number of shares of common
stock of the Corporation issuable upon the
conversion of his 10% Voting Preferred Stock
immediately prior to the time such
reorganization, recapitalization, merger, or
consolidation became effective. No
adjustment shall be made upon any conversion
on account of any dividends accrued on the
shares of 10% Voting Preferred Stock
surrendered for conversion or on account of
any dividend on the shares of common stock
issued on such conversion.
(b) In order to convert shares of
10% Voting Preferred Stock into shares of
common stock, the holder thereof shall
surrender at the office of the Corporation
the certificate or certificates therefor,
duly endorsed to the Corporation or in
blank, and give written notice at such
office that he elects to convert such shares
of 10% Voting Preferred Stock which shall be
deemed to have been converted as of the date
(hereinafter called the "Conversion Date")
of the surrender of such shares for
conversion as provided above, and the person
or persons entitled to receive the shares of
common stock issuable upon such conversion
shall be treated for all purposes as the
record holder or holders of such common
stock on such date. As soon as practicable
on or after the Conversion Date, the
Corporation will deliver at such office a
certificate or certificates for the number
of full shares of common stock issuable on
such conversion, together with cash in lieu
of any fraction of a share, as hereinafter
provided, to the persons entitled to receive
the same. In case shares of 10% Voting
Preferred Stock are called for redemption,
the right to convert such shares shall cease
and terminate at the close of business on
the date fixed for redemption, unless
default shall have been made in the payment
of the redemption price.
(c) No fractional shares of common
stock shall be issued upon conversion, but
the Corporation shall pay a cash adjustment
in respect of any fraction of a share which
would otherwise be issuable, in an amount
equal to the same fraction of the market
price per share of common stock at the close
of business on the Conversion Date. The
market price per share shall be, (i) if
traded on the over-the-counter market, the
mean between the closing bid and asked
quotations, or (ii) if traded on a national
securities exchange, the closing sale price,
or (iii) if traded on both the
over-the-counter market and an exchange, the
mean between the prices determined in
accordance with clauses (i) and (ii) of this
sentence.
(E) Second Series of Class A Preferred
Stock. The second series of 400,000 shares of Class A
Preferred Stock shall be designated Ten Percent (10%)
Cumulative Convertible Voting Preferred Stock3/4Series B,
$0.25 stated value (hereinafter called "Series B Preferred
Stock"), and shall have the following rights, preferences and
limitations:
(i) Dividends. The holders of the Series B
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, but only out of surplus
legally available for the payment of dividends, cumulative
cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July,
commencing July 1, 1985. Such dividends shall be payable after
all past and current dividends on the Six Percent (6%) Voting
Cumulative Preferred Stock and the Preferred Stock Without Par
Value have been declared and paid, or a sum sufficient
therefor has been set aside for that purpose, and before any
dividends (other than a stock dividend in shares of the same
class of stock) on any class of common stock shall be paid or
set apart for payment or any shares of such stock shall be
acquired for consideration. Dividends shall be cumulative from
and after the date of issue of such shares, but any arrearages
in payment shall not bear interest.
(ii) Redemption. Provided that dividends on the
Six Percent (6%) Voting Cumulative Preferred Stock and the
Preferred Stock without Par Value have been paid or a sum set
aside for payment, the Corporation, at the option of the Board
of Directors, may redeem all or any part of the Series B
Preferred Stock at any time outstanding, at any time or from
time to time, upon notice duly given as hereinafter provided
for an amount in respect of each share to be redeemed equal to
the sum of $0.25; and an amount computed at the annual rate of
$.025 per annum per share from and after the date on which
dividends on such share became cumulative to and including the
date fixed for such redemption, less the aggregate of the
dividends theretofore and on such redemption date paid, but
computed without interest.
Notice of every such redemption of Series
B Preferred Stock shall be mailed at least thirty (30) days
prior to the date fixed for such redemption to the holders of
record of shares so to be redeemed at their respective
addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the
Series B Preferred Stock at the time outstanding, the shares
to be redeemed shall be selected in such manner as the Board
of Directors may determine, whether by lot or by pro rata
redemption or by selection of particular shares, and the
proceedings and actions of the Board of Directors in this
connection shall not be subject to attack except for fraud.
(iii) Voting. The holders of Series B Preferred
Stock shall be entitled to one vote for each share of such
stock in all questions presented to the stockholders of the
Corporation.
(iv) Conversion. The holders of Series B
Preferred Stock shall have the right, at their option, to
convert such shares into shares of common stock, $0.25 par
value, at any time after the issuance thereof, on and subject
to the following terms and conditions:
(a) The Series B Preferred Stock
shall be convertible, at the office of the
Corporation or at such other office or
offices, if any, as the Board of Directors
may designate, into fully paid and
non-assessable shares of Class A Common
Stock and Class B Common Stock (calculated
as to each conversion to the nearest 1/10 of
a share) at the conversion rate, determined
as hereinafter provided, in effect at the
time of conversion. The conversion rate
shall be one (1) share of Class A Common
Stock and one (1) share of Class B Common
Stock for every thirty (30) shares of Series
B Preferred Stock. In case the Corporation
shall at any time subdivide its outstanding
shares of common stock into a greater number
of shares or shall pay in shares of common
stock a dividend on then outstanding shares
of common stock, the number of shares of
common stock into which the Series B
Preferred Stock is convertible shall be
proportionately increased and, conversely,
in case the Corporation shall at any time
combine its outstanding shares of common
stock into a smaller number of shares, the
number of shares of common stock into which
the Series B Preferred Stock is convertible
shall be proportionately reduced. If any
capital reorganization or reclassification
of the capital stock of the Corporation, or
any consolidation or merger of the
Corporation with another corporation, shall
be effected, the holder of Series B
Preferred Stock shall thereafter be entitled
upon the exercise of conversion rights to
receive the number and kind of shares of
stock, securities or assets which the holder
would have been entitled to receive in
connection with such reorganization,
recapitalization, merger or consolidation if
he had been a holder of the number of shares
of common stock of the Corporation issuable
upon the conversion of his Series B
Preferred Stock immediately prior to the
time such reorganization, recapitalization,
merger, or consolidation became effective.
No adjustment shall be made upon any
conversion on account of any dividends
accrued on the shares of Series B Preferred
Stock surrendered for conversion or on
account of any dividend on the shares of
common stock issued on such conversion.
(b) In order to convert shares of
Series B Preferred Stock into shares of
common stock, the holder thereof shall
surrender at the office of the Corporation
the certificate or certificates therefor,
duly endorsed to the Corporation or in
blank, and give written notice at such
office that he elects to convert such shares
of Series B Preferred Stock which shall be
deemed to have been converted as of the date
(hereinafter called the "Conversion Date")
of the surrender of such shares for
conversion as provided above, and the person
or persons entitled to receive the shares of
common stock issuable upon such conversion
shall be treated for all purposes as the
record holder or holders of such common
stock on such date. As soon as practicable
on or after the Conversion Date, the
Corporation will deliver at such office a
certificate or certificates for the number
of full shares of common stock issuable on
such conversion, together with cash in lieu
of any fraction of a share, as hereinafter
provided, to the persons entitled to receive
the same. In case shares of Series B
Preferred Stock are called for redemption,
the right to convert such shares shall cease
and terminate at the close of business on
the date fixed for redemption, unless
default shall have been made in the payment
of the redemption price.
(c) No fractional shares of common
stock shall be issued upon conversion, but
the Corporation shall pay a cash adjustment
in respect of any fraction of a share which
would otherwise be issuable, in an amount
equal to the same fraction of the market
price per share of common stock at the close
of business on the Conversion Date. The
market price per share shall be, (i) if
traded on the over-the-counter market, the
mean between the closing bid and asked
quotations, or (ii) if traded on a national
securities exchange, the closing sale price,
or (iii) if traded on both the
over-the-counter market and an exchange, the
mean between the prices determined in
accordance with clauses (i) and (ii) of this
sentence.
(e) Provisions Generally Applicable to Capital Stock.
(A) No holder of shares of the Capital Stock
of any class of the Corporation shall have any preemptive or
preferential right of subscription to any shares of any class
of stock of the Corporation, whether now or hereafter
authorized, or to any obligations convertible into stock of
the Corporation, issued or sold, nor any right of subscription
to any thereof other than such, if any, as the Board of
Directors, in its discretion, may from time to time determine
and at such price as the Board of Directors may, from time to
time, fix; and any shares of stock or convertible obligations
which the Corporation may determine to offer for subscription
to the holders of stock may, as the Board of Directors shall
determine, be offered to holders of any class or classes of
stock exclusively or to holders of all classes of stock, and
if offered to more than one class of stock, in such
proportions as between the said classes of stock as the Board
of Directors in its discretion may determine.
As used in this Section (e) the expression
"convertible obligations" shall include any notes, bonds or
other evidences of indebtedness to which are attached or with
which are issued warrants or other rights to purchase stock of
the Corporation of any class or classes; and the Board of
Directors is hereby expressly authorized, in its discretion,
in connection with the issue of any obligations or stock of
the Corporation (but without intending hereby to limit its
general power as to do in any other cases) to grant rights or
options to purchase stock of the Corporation of any class upon
such terms and during such periods as the Board of Directors
shall determine, and to cause such rights or options to be
evidenced by such warrants or other instruments as it may deem
advisable.
(B) The Board of Directors may authorize the purchase
of shares of Class A Common Stock or Class B Common Stock or
any other class of stock or any combination of classes without
regard to differences among the classes in price or other
terms upon which such shares may be purchased.
I The By-Laws of the Corporation may be amended at a
meeting of stockholders by the affirmative vote of
the holders of two-thirds (2/3) of the shares present
and entitled to vote at the meeting.
II Any Director may be removed either with or without
cause at any time by a vote of the stockholders
holding two-thirds (2/3) of the stock then issued and
outstanding and which was entitled to vote for the
election of the directors sought to be removed at any
Special Meeting called for that purpose.
III The office of the Corporation shall be located in
the Village of Pittsford, County of Monroe, New York,
and the address to which the Secretary of State
shall mail a copy of process in any action or
proceeding against the Corporation that may be served
upon the Secretary of State is 1162 Pittsford-Victor
Road, Pittsford, New York 14534.
IV The Secretary of State of the State of New York is
hereby designated as the agent of the Corporation
upon whom process in any action or proceeding against
it may be served.
V Each and every director or officer of this
Corporation, including a person who has been a
director or officer and whose term of office has
expired, shall be indemnified by the Corporation
against any and all expenses actually and necessarily
incurred by him in connection with the defense of any
action, suit or proceeding in which he is made a
party by reason of his being or having been a
director or officer of this Corporation except in
relation to matters as to which he shall be adjudged
in such action, suit or proceeding to be liable for
neglect or misconduct in the performance of his
duties as such director or officer, and such right
of indemnification shall not be deemed exclusive or
any other rights to which he might be entitled.
IN WITNESS WHEREOF, this Certificate has been
executed this day of August 1995 and we affirm the
statements contained therein are true under penalties
of perjury.
/s/ Kraig H. Kayser
Kraig H. Kayser, President
/s/ Jeffrey L. Van Riper
Jeffrey L. Van Riper, Secretary
(SEAL)
<PAGE>
Exhibit 3.2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SENECA FOODS CORPORATION
Under Section 805 of the Business Corporation Law
<PAGE>
We, the undersigned, being the President and Secretary of SENECA FOODS
CORPORATION, do hereby certify as follows:
FIRST: The name of the Corporation is SENECA FOODS CORPORATION. The
name under which the Corporation was formed is SENECA GRAPE JUICE CORPORATION.
SECOND: The certificate of incorporation of the Corporation was filed
by the Department of State on August 17, 1949.
THIRD: The certificate of incorporation of the Corporation is hereby
amended to:
(a) Authorize a new class of ten million (10,000,000) shares of
Common Stock of the par value of $0.25 to be designated Class A Common
Stock;
(b) Reclassify the existing class of Common Stock as Class B Common
Stock; (c) Establish the express terms of the Class A Common Stock and
the Class B Common Stock. To accomplish this, Articles 3 and 4 of the
Certificate of Incorporation, are hereby amended to read in
their entirety as follows:
3. The Capital Stock of the Corporation shall consist of ten
million (10,000,000) shares of Class A Common Stock of the par value of
$0.25 each; ten million (10,000,000) shares of Class B Common Stock of
the par value of $0.25 each; two hundred thousand (200,000) shares of
Six Percent (6%) Voting Cumulative Preferred Stock of the par value of
$0.25 each; thirty thousand (30,000) shares of Preferred Stock Without
Par Value, to be issued in series by the Board of Directors, pursuant
to the provisions of Article 4, Section (c) hereof, subject to the
limitations prescribed by law; and four million (4,000,000) shares of
Preferred Stock with $.025 par value, Class A, to be issued by the
Board of Directors pursuant to the provisions of Article 4, Section (d)
hereof, subject to the limitations prescribed by law. The stated
capital of the Corporation as determined pursuant to Section 506 of the
Business Corporation Law shall be increased by one million one hundred
eighty thousand four hundred ninety three dollars ($1,180,493) and such
increase shall be allocated equally to the stated capital in respect of
the Corporation's $0.25 par value Class A Common Stock and Class B
Common Stock.
4. The designations, preferences, privileges and voting powers
of the shares of each class of stock which the Corporation is
authorized to issue, and the restrictions or qualifications thereof,
shall be as follows:
(a) Class A Common Stock and Class B Common Stock.
(A) Provisions Applicable to Class A Common Stock and
Class B Common Stock.
(i) The holders of record of Class A Common Stock and
the holders of record of Class B Common Stock shall have equal rights
and rank per share with respect to any and all dividends and
distributions declared on the common stock of the Corporation, and no
dividend or distribution shall be declared or made with respect to
either Class A Common Stock or Class B Common Stock unless that
dividend or distribution is declared and made with respect to both such
classes; except that (subject to conversion rights of any preferred
stocks) a dividend or distribution upon Class A Common Stock which will
be paid in shares of common stock of the Corporation shall be declared
and made only in shares of Class A Common Stock and a dividend or
distribution upon Class B Common Stock which will be paid in shares of
common stock of the Corporation shall be declared and made only in
shares of Class B Common Stock, and if a dividend or distribution is so
declared and paid in shares of one class of common stock to the holder
of each share of that class, a per-share dividend or distribution in an
equal number of shares of the other class of common stock shall be
concurrently declared and paid to the holder of each share of such
other class, so that the number of shares of Class A Common Stock paid
as a dividend or distribution on a share of Class A Common Stock shall
be equal to the number of shares of Class B Common Stock paid as a
dividend or distribution on a share of Class B Common Stock.
(ii) In the event of any voluntary or involuntary
liquidation, dissolution or any winding up of the Corporation, each
share of Class A Common Stock and Class B Common Stock shall rank
equally with respect to any distribution to be received by holders of
common stock upon or with respect to liquidation, dissolution or
winding up.
(B) Provisions Applicable to Class A Common Stock.
(i) The holders of Class A Common Stock are entitled
to one-twentieth (1/20th) of one vote per share on all questions
presented to the stockholders. In all elections of directors of the
Corporation, each holder of Class A Common Stock shall have the right
to vote in person or by proxy one-twentieth (1/20th) of one vote for
each share of Class A Common Stock held by such holder for as many
Persons as there are directors to be elected.
No cumulative voting for directors shall be permitted.
Any provision of the Certificate of Incorporation or By-laws of the
Corporation requiring the affirmative vote of a specified percentage of
shares of the Corporation shall be read to give effect to the lesser
voting rights of the holders of Class A Common Stock as described
above; specifically, a provision that the affirmative vote of a
specified percentage of the shares of the Corporation is required shall
require the affirmative vote of the holders of that percentage of the
aggregate voting power of the Corporation.
The holders of Class A Common Stock are entitled to vote as a
separate class (i) on any proposal to amend the Corporation's
Certificate of Incorporation to increase the authorized number of
shares of Class B Common Stock, unless the increased authorization does
not exceed the number of shares of Class B Common Stock which must be
issued in a proposed stock dividend with respect to shares of Class B
Common Stock and which conforms to the requirements set forth in this
Article with respect to payment of dividends in stock of this
Corporation upon shares of Class B Common Stock and Class A Common
Stock and (ii) as required by applicable law.
(ii) The Class A Common Stock is not convertible into
shares of Class B Common Stock, unless the number of outstanding shares
of Class B Common Stock falls below 5% of the aggregate number of
outstanding shares of Class B Common Stock and Class A Common Stock. At
such time, all of the outstanding Class A Common Stock will be
converted automatically into shares of Class B Common Stock on a
share-for-share basis. For purposes of this Article 4(a)(B)(ii),
"outstanding" shares of Common Stock would not include shares of Class
B Common Stock or shares of Class A Common Stock repurchased by the
Corporation and not reissued.
(C) Provisions Applicable to Class B Common Stock.
(i) Except as provided in paragraph (C)(ii) of this
Article 4(a), the holders of Class B Common Stock are entitled to one
vote per share on all questions presented to the stockholders. In all
elections of directors of the Corporation, each holder of Class B
Common Stock shall have the right to vote in person or by proxy the
number of shares of Class B Common Stock held by such holder for as
many Persons as there are directors to be elected. No cumulative voting
for directors shall be permitted. The holders of Class B Common Stock
are entitled to vote as a separate class where required by applicable
law. If any share of Class B Common Stock is ineligible to vote by
reason of the limitations contained in paragraph (c)(ii) of this
Article 4(a), that share will be excluded from the determination of the
total shares eligible to vote for any purpose for which a vote of
shareholders is taken.
(ii) The voting rights of holders of shares of Class
B Common Stock are subject to the following restrictions: If a Person
acquires more than 15% (the "15% Threshold Amount") of the outstanding
Class B Common Stock after August 5, 1995 (the "Threshold Date") and
does not acquire after the Threshold Date a percentage of the Class A
Common Stock outstanding at least equal to the percentage of Class B
Common Stock acquired by that Person after the Threshold Date in excess
of the 15% Threshold Amount, such Person will not be allowed to vote
shares of Class B Common Stock acquired after the Threshold Date in
excess of the 15% Threshold Amount. The inability of the Person to vote
the shares of Class B Common Stock in excess of the 15% Threshold
Amount will continue until such time as a sufficient number of shares
of Class A Common Stock have been acquired by the Person.
For purposes of calculating the 15% Threshold Amount, the following
acquisitions and increases shall be excluded: (i) shares of Class B
Common Stock held by any Person on the Threshold Date, (ii) an increase
in a holder's percentage ownership of Class B Common Stock resulting
solely from a change in the total number of shares of Class B Common
Stock outstanding as a result of a repurchase of Class B Common Stock
by the Corporation since the last date on which that holder acquired
Class B Common Stock, (iii) acquisitions of Class B Common Stock (1)
made pursuant to contracts existing prior to the Threshold Date,
including the acquisition of Class B Common Stock pursuant to the
conversion provisions of Class A Preferred Stock outstanding prior to
the Threshold Date, (2) by bequest or inheritance, or by operation of
law upon the death or incompetency of any individual and (3) by any
other transfer made without valuable consideration, in good faith and
not for the purpose of circumventing the restrictions imposed by the
15% Threshold Amount. A gift made to any Person who is related to the
donor by blood or marriage, a gift made to a charitable organization
qualified under Section 501(c)(3) of the Internal Revenue Code of 1986
or a successor provision and a gift to a Person who is a fiduciary
solely for the benefit of, or which is owned entirely by, one or more
of the following persons or entities:
(1) a person who is related to the donor by blood or marriage, or
(2) a charitable organization which is qualified under Section
501(c)(3) as described above
shall be presumed to be made in good faith and not for purposes of
circumventing the restrictions imposed by the 15% Threshold Amount.
Acquisitions of Class A Common Stock so as to preclude the effect of
the voting restrictions contained in the preceding paragraph must be
made for an "equitable price." For purposes of this paragraph an
"equitable price" is deemed to have been paid only when the shares of
Class A Common Stock have been acquired at a price at least equal to
the greater of (i) the highest per share price paid by the acquiring
Person, in cash or non-cash consideration, for any Class B Common Stock
acquired within the 60-day periods preceding and following the
acquisition of the Class A Common Stock or (ii) the highest closing
market sale price of Class B Common Stock during the 30-day periods
preceding and following the acquisition of the Class A Common Stock.
The value of any non-cash consideration will be determined by the Board
of Directors acting in good faith. The highest closing market sale
price of a share of Class B Common Stock will be the highest closing
sale price reported by the principal trading market for either class of
Common Stock.
As used in this Article 4(a)(C)(ii):
"Person" shall include one or more persons and
entities who act or agree to act in concert with respect to
the acquisition or disposition of Class B Common Stock or with
respect to proposing or effecting a plan or proposal to (a) a
merger, reorganization or liquidation of the Corporation or a
sale of a material amount of its assets, (b) a change in the
Corporation's Board of Directors or management, including any
plans or proposal to fill vacancies on the Board of Directors
or change the number or term of Directors, (c) a material
change in the business or corporate structure of the
Corporation, or (d) any material change in the capitalization
or dividend policy of the Corporation. As used in the
preceding sentence, "act or agree to act in concert" shall not
include acts or agreements to act by persons pursuant to their
official capacities as Directors or officers of the
Corporation or because they are related by blood or marriage.
Each reference to acquiring or acquisition of Class
B Common Stock and Class A Common Stock shall include direct
and indirect acquisitions of such stock.
(iii) The holders of Class B Common Stock shall have
the right, at their option, to convert such shares into shares of Class
A Common Stock at any time after the issuance thereof, on a
share-per-share basis. The conversion rights in the preceding sentence
shall expire upon the occurrence of the automatic conversion of all
outstanding shares of Class A Common Stock into Class B Common Stock
pursuant to the provisions of paragraph (B)(ii) of this Article 4(a).
In order to convert shares of Class B Common Stock into shares of Class
A Common Stock, the holder thereof shall surrender at the office of the
Corporation the certificate or certificates therefor, duly endorsed to
the Corporation or in blank, and give written notice at such office
that he elects to convert such shares of Class B Common Stock which
shall be deemed to have been converted as of the date (hereinafter
called the "Class A Conversion Date") of the surrender of such shares
for conversion as provided above, and the person or persons entitled to
receive the shares of Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such Class A Common Stock on such date. As soon as
practicable on or after the Class A Conversion Date, the Corporation
will deliver at such office a certificate or certificates for the
number of shares of Class A Common Stock issuable on such conversion.
(b) Six Percent (6%) Voting Cumulative Preferred Stock.
(A) The holders of record of Six Percent (6%) Voting
Cumulative Preferred Stock shall be entitled to cash dividends when and
as declared by the Board of Directors at the rate of six percent (6%)
of the par value per share per annum and no more, payable on the first
days of January and July in each year in preference to and in priority
over dividends upon the common stock and all other shares junior to the
Six Percent (6%) Voting Cumulative Preferred Stock. Such cash dividends
on the Six Percent (6%) Voting Cumulative Preferred Stock are to be
cumulative so that, if for any year or years cash dividends at the rate
of six percent (6%) per share per annum are not declared and paid or
set apart for payment on such Six Percent (6%) Voting Cumulative
Preferred Stock outstanding, the deficiency shall be declared and paid
or set apart for payment prior to the making of any dividend or other
distribution on the common stock, such cash dividends on the Six
Percent (6%) Voting Cumulative Preferred Stock to accrue from the date
of issue if that be a dividend date, otherwise from the dividend date
next preceding the date of issue of such Six Percent (6%) Voting
Cumulative Preferred Stock. Upon the payment or setting apart for
payment of all dividends current and accumulated at the rate of six
percent (6%) per annum upon the Six Percent (6%) Voting Cumulative
Preferred Stock, the directors may declare and pay dividends in order
of priority upon shares junior to the said Six Percent (6%) Voting
Cumulative Preferred Stock.
(B) In the event of any voluntary or involuntary
liquidation, dissolution or any winding up of the Corporation, the
holders of record of the Six Percent (6%) Voting Cumulative Preferred
Stock shall be entitled to be paid the full par value of such issue of
Preferred Stock plus accumulated dividends thereon to the date of such
liquidation, dissolution or winding up of the Corporation, whether or
not the Corporation shall have a surplus or earnings available for
dividends, and no more before any distribution of any assets shall be
made to the holders of any class of common stock or other shares junior
to the Six Percent (6%) Voting Cumulative Preferred Stock.
(C) The Corporation at its option may redeem the
whole or any part, pro rata or by lot, of the Six Percent (6%) Voting
Cumulative Preferred Stock outstanding at any time by paying therefor
in cash one hundred percent (100%) of the par value thereof plus
accumulated dividends thereon to the date fixed for such redemption by
mailing notice of such redemption to the holders of such Six Percent
(6%) Voting Cumulative Preferred Stock to be redeemed at their
respective addresses as such addresses may appear on the stock books of
the Corporation, specifying the time and place of redemption at the
office of the Corporation, such notice to be mailed at least thirty
(30) days and not more than sixty (60) days prior to the date specified
therein for redemption.
(D) In all elections of directors of the Corporation,
each holder of Six Percent (6%) Voting Cumulative Preferred Stock shall
have the right to vote in person or by proxy the number of shares of
Six Percent (6%) Voting Cumulative Preferred Stock held by him for as
many Persons as there are directors to be elected. No cumulative voting
for directors shall be permitted.
(E) A class of stock shall be deemed to be "junior to
the Six Percent (6%) Voting Cumulative Preferred Stock" if the Six
Percent (6%) Voting Cumulative Preferred Stock has priority over such
class with respect to dividend rights or liquidation rights.
(c) Preferred Stock Without Par Value.
(A) The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this paragraph, to
provide for the issuance in series of the shares of Preferred Stock
Without Par Value, and by filing a certificate pursuant to the Business
Corporation Law, to establish the number of shares to be included in
each such series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series whether
or not such relative rights, preferences and limitations of such series
shall be fixed as senior to, junior to, or on a parity with the
relative rights, preferences and limitations of any other class of
stock or series thereof, and to reclassify or alter the designation,
relative rights, preferences and limitations of any authorized and
unissued Preferred Stock Without Par Value whether or not such shares
shall have been designated as shares of any particular series and
whether or not such relative rights, preferences and limitations of
such series shall be fixed as senior to, junior to, or on a parity with
the relative rights, preferences and limitations of any other class of
stock or series thereof. The authority of the Board with respect to
each series shall include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series and the
distinctive designation of that series;
(ii) The rate and times at which, and the terms and conditions on
which, dividends, if any, on shares of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes or series of the same
or other classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting rights, in addition to
any voting rights provided by law, and, if so, the terms of such voting
rights;
(iv) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates;
(vi) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation; and
(vii) Any other relative rights, preferences and limitations of that
series.
The authority of the Board of Directors with respect
to each such series shall be limited by the condition that no series of
the shares of any series so authorized by the Board of Directors to be
issued shall rank as to the payment of dividends or rights on
liquidation, dissolution or winding up of the Corporation senior to the
shares of any previously authorized series or of any other class of
Preferred Stock without an affirmative vote of a majority of the
holders of each such series or class of stock.
(B) Dividends on outstanding shares of Preferred
Stock Without Par Value shall be declared and paid, or set apart for
payment, before any dividends shall be declared and paid, or set apart
for payment, on any class of common stock with respect to the same
dividend period. If the stated dividends on the shares of all series of
Preferred Stock Without Par Value are not paid in full, the shares of
all series of such class shall share ratably in the payment of
dividends including accumulation, if any, in accordance with the sums
which would be payable on such shares if all dividends were declared
and paid in full.
(C) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders
of shares of each series of Preferred Stock Without Par Value then
outstanding shall be entitled to receive out of the assets of the
Corporation, before any distribution or payment shall be made to the
holders of any class of common stock, an amount equal to the stated
value of the stock plus, in respect of each share with respect to which
dividends are cumulative, a sum computed at the dividend rate provided
for in the Certificate of Incorporation from and after the date on
which dividends on such shares became cumulative to and including the
date fixed for such payment, less the aggregate of the dividends
theretofore paid thereon, but computed without interest. If the amounts
payable on liquidation in respect to the shares of all series of
Preferred Stock Without Par Value are not paid in full, the shares of
all series of such class shall share ratably in any distribution of
assets other than by way of dividends in accordance with the sums which
would be payable in such distribution if all sums payable were
discharged in full. If such payment shall have been made in full to the
holders of all shares of Preferred Stock Without Par Value on voluntary
or involuntary liquidation, dissolution or winding up, the remaining
assets of the Corporation shall be distributed in accordance with
Section (d)(C) of this Article 4. For the purpose of this paragraph, a
consolidation or merger of the Corporation with one or more other
corporations shall not be deemed to be a liquidation or winding up of
the Corporation.
(d) Preferred Stock With $.025 Par Value, Class A.
(A) The Board of Directors is authorized, subject to
the limitations prescribed by law and the provisions of this paragraph,
to provide for the issuance in series of the shares of Preferred Stock
With $.025 Par Value, Class A (hereinafter called "Class A Preferred
Stock"), and by filing a certificate pursuant to the Business
Corporation Law, to establish the number of shares to be included in
each such series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series. The
authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The rate and times at which, and the terms and conditions on
which, dividends, if any, on shares of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes or series of the same
or other classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting rights, in addition to
any voting rights provided by law, and, if so, the terms of such voting
rights;
(iv) Whether that series shall have conversion privileges, and, it
so, the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates;
(vi) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation; and
(vii) Any other relative rights, preferences and limitations of that
series.
The authority of the Board of Directors shall be limited by
the condition that the shares of each series of Class A Preferred Stock
authorized by the Board of Directors to be issued shall rank, as to the
payment of dividends or rights on liquidation, dissolution or winding
up of the Corporation, junior to the shares of any authorized class of
Preferred Stock.
(B) Dividends on outstanding shares of Class A
Preferred Stock shall be declared and paid, or set apart for payment,
before any dividends shall be declared and paid, or set apart for
payment, on any class of common stock with respect to the same dividend
period. It the stated dividends on the shares of all series of Class A
Preferred Stock are not paid in full, the shares of all series of such
class shall share ratably in the payment of dividends including
accumulation, if any, in accordance with the sums which would be
payable on such shares if all dividends were declared and paid in full.
(C) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders
of shares of each series of Class A Preferred Stock then outstanding
shall be entitled to receive out of the assets of the Corporation,
before any distribution or payment shall be made to the holders of any
class of common stock, an amount equal to the stated value of the stock
plus, in respect of each share with respect to which dividends are
cumulative, a sum computed at the dividend rate provided for in the
Certificate of Incorporation from and after the date on which dividends
on such shares became cumulative to and including the date fixed for
such payment, less the aggregate of the dividends theretofore paid
thereon, but computed without interest. If the amounts payable on
liquidation in respect to the shares of all series of Class A Preferred
Stock are not paid in full, the shares of all series of such class
shall share ratably in any distribution of assets other than by way of
dividends in accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full. If such
payment shall have been made in full to the holders of all shares of
Class A Preferred Stock on voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the remaining assets of
the Corporation shall be distributed among the holders of each class of
common stock pro rata in accordance with their respective holdings. For
the purpose of this paragraph, a consolidation or merger of the
Corporation with one or more other corporations shall not be deemed to
be a liquidation or winding up of the Corporation.
(D) First Series of Class A Preferred Stock. The
first series of 1,000,000 shares of Class A Preferred Stock shall be
designated Ten Percent (10%) Cumulative Convertible Voting Preferred
Stock3/4Series A, $0.25 stated value (hereinafter called "10% Voting
Preferred Stock"), and shall have the following rights, preferences and
limitations:
(i) Dividends. The holders of the 10% Voting Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors,
but only out of surplus legally available for the payment of dividends,
cumulative cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July, commencing
January l, 1984. Such dividends shall be payable after all past and
current dividends on the Six Percent (6%) Voting Cumulative Preferred
Stock and the Preferred Stock Without Par Value have been declared and
paid, or a sum sufficient therefor has been set aside for that purpose,
and before any dividends (other than a stock dividend in shares of the
same class of stock) on any class of common stock shall be paid or set
apart for payment or any shares of such stock shall be acquired for
consideration. Dividends shall be cumulative from and after the date of
issue of such shares, but any arrearages in payment shall not bear
interest.
(ii) Redemption. Provided that dividends on the Six Percent (6%)
Voting Cumulative Preferred Stock and the Preferred Stock Without Par
Value have been paid or a sum set aside for payment, the Corporation,
at the option of the Board of Directors, may redeem all or any part of
the 10% Voting Preferred Stock at any time outstanding, at any time or
from time to time, upon notice duly given as hereinafter provided for
an amount in respect of each share to be redeemed equal to the sum of
$0.25 and an amount computed at the annual rate of $.025 per annum per
share from and after the date on which dividends on such share became
cumulative to and including the date fixed for such redemption, less
the aggregate of the dividends theretofore and on such redemption date
paid, but computed without interest.
Notice of every such redemption of 10% Voting Preferred Stock
shall be mailed at least thirty (30) days prior to the date fixed for
such redemption to the holders of record of shares so to be redeemed at
their respective addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the 10% Voting
Preferred Stock at the time outstanding, the shares to be redeemed
shall be selected in such manner as the Board of Directors may
determine, whether by lot or by pro rata redemption or by selection of
particular shares, and the proceedings and actions of the Board of
Directors in this connection shall not be subject to attack except for
fraud.
(iii) Voting. The holders of 10% Voting Preferred Stock shall be
entitled to one vote for each share of such stock on all questions
presented to the stockholders of the Corporation.
(iv) Conversion. The holders of 10% Voting Preferred Stock shall
have the right, at their option, to convert such shares into shares of
common stock, $0.25 par value, at any time after the issuance thereof,
on and subject to the following terms and conditions:
(a) The 10% Voting Preferred Stock shall be
convertible, at the office of the Corporation or at such other
office or offices, if any, as the Board of Directors may
designate, into fully paid and non-assessable shares of Class
A Common Stock and Class B Common Stock (calculated as to each
conversion to the nearest 1/10 of a share) at the conversion
rate, determined as hereinafter provided, in effect at the
time of conversion. The conversion rate shall be one (l) share
of Class A Common Stock and one (1) share of Class B Common
Stock for every twenty (20) shares of 10% Voting Preferred
Stock. In case the Corporation shall at any time subdivide its
outstanding shares of common stock into a greater number of
shares or shall pay in shares of common stock a dividend on
then outstanding shares of common stock, the number of shares
of common stock into which the 10% Voting Preferred Stock is
convertible shall be proportionately increased and,
conversely, in case the Corporation shall at any time combine
its outstanding shares of common stock into a smaller number
of shares, the number of shares of common stock into which the
10% Voting Preferred Stock is convertible shall be
proportionately reduced. If any capital reorganization or
reclassification of the capital stock of the Corporation, or
any consolidation or merger of the Corporation with another
corporation, shall be effected, the holder of 10% Voting
Preferred Stock shall thereafter be entitled upon the exercise
of conversion rights to receive the number and kind of shares
of stock, securities or assets which the holder would have
been entitled to receive in connection with such
reorganization, recapitalization, merger or consolidation if
he had been a holder of the number of shares of common stock
of the Corporation issuable upon the conversion of his 10%
Voting Preferred Stock immediately prior to the time such
reorganization, recapitalization, merger, or consolidation
became effective. No adjustment shall be made upon any
conversion on account of any dividends accrued on the shares
of 10% Voting Preferred Stock surrendered for conversion or on
account of any dividend on the shares of common stock issued
on such conversion.
(b) In order to convert shares of 10% Voting
Preferred Stock into shares of common stock, the holder
thereof shall surrender at the office of the Corporation the
certificate or certificates therefor, duly endorsed to the
Corporation or in blank, and give written notice at such
office that he elects to convert such shares of 10% Voting
Preferred Stock which shall be deemed to have been converted
as of the date (hereinafter called the "Conversion Date") of
the surrender of such shares for conversion as provided above,
and the person or persons entitled to receive the shares of
common stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such
common stock on such date. As soon as practicable on or after
the Conversion Date, the Corporation will deliver at such
office a certificate or certificates for the number of full
shares of common stock issuable on such conversion, together
with cash in lieu of any fraction of a share, as hereinafter
provided, to the persons entitled to receive the same. In case
shares of 10% Voting Preferred Stock are called for
redemption, the right to convert such shares shall cease and
terminate at the close of business on the date fixed for
redemption, unless default shall have been made in the payment
of the redemption price.
(c) No fractional shares of common stock shall be
issued upon conversion, but the Corporation shall pay a cash
adjustment in respect of any fraction of a share which would
otherwise be issuable, in an amount equal to the same fraction
of the market price per share of common stock at the close of
business on the Conversion Date. The market price per share
shall be, (i) if traded on the over-the-counter market, the
mean between the closing bid and asked quotations, or (ii) if
traded on a national securities exchange, the closing sale
price, or (iii) if traded on both the over-the-counter market
and an exchange, the mean between the prices determined in
accordance with clauses (i) and (ii) of this sentence.
(E) Second Series of Class A Preferred Stock. The
second series of 400,000 shares of Class A Preferred Stock shall be
designated Ten Percent (10%) Cumulative Convertible Voting Preferred
Stock3/4Series B, $0.25 stated value (hereinafter called "Series B
Preferred Stock"), and shall have the following rights, preferences and
limitations:
(i) Dividends. The holders of the Series B Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors,
but only out of surplus legally available for the payment of dividends,
cumulative cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July, commencing July
1, 1985. Such dividends shall be payable after all past and current
dividends on the Six Percent (6%) Voting Cumulative Preferred Stock and
the Preferred Stock Without Par Value have been declared and paid, or a
sum sufficient therefor has been set aside for that purpose, and before
any dividends (other than a stock dividend in shares of the same class
of stock) on any class of common stock shall be paid or set apart for
payment or any shares of such stock shall be acquired for
consideration. Dividends shall be cumulative from and after the date of
issue of such shares, but any arrearages in payment shall not bear
interest.
(ii) Redemption. Provided that dividends on the Six Percent (6%)
Voting Cumulative Preferred Stock and the Preferred Stock without Par
Value have been paid or a sum set aside for payment, the Corporation,
at the option of the Board of Directors, may redeem all or any part of
the Series B Preferred Stock at any time outstanding, at any time or
from time to time, upon notice duly given as hereinafter provided for
an amount in respect of each share to be redeemed equal to the sum of
$0.25; and an amount computed at the annual rate of $.025 per annum per
share from and after the date on which dividends on such share became
cumulative to and including the date fixed for such redemption, less
the aggregate of the dividends theretofore and on such redemption date
paid, but computed without interest.
Notice of every such redemption of Series B Preferred Stock
shall be mailed at least thirty (30) days prior to the date fixed for
such redemption to the holders of record of shares so to be redeemed at
their respective addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the Series B
Preferred Stock at the time outstanding, the shares to be redeemed
shall be selected in such manner as the Board of Directors may
determine, whether by lot or by pro rata redemption or by selection of
particular shares, and the proceedings and actions of the Board of
Directors in this connection shall not be subject to attack except for
fraud.
(iii) Voting. The holders of Series B Preferred Stock shall be
entitled to one vote for each share of such stock in all questions
presented to the stockholders of the Corporation.
(iv) Conversion. The holders of Series B Preferred Stock shall have
the right, at their option, to convert such shares into shares of
common stock, $0.25 par value, at any time after the issuance thereof,
on and subject to the following terms and conditions:
(a) The Series B Preferred Stock shall be
convertible, at the office of the Corporation or at such other
office or offices, if any, as the Board of Directors may
designate, into fully paid and non-assessable shares of Class
A Common Stock and Class B Common Stock (calculated as to each
conversion to the nearest 1/10 of a share) at the conversion
rate, determined as hereinafter provided, in effect at the
time of conversion. The conversion rate shall be one (1) share
of Class A Common Stock and one (1) share of Class B Common
Stock for every thirty (30) shares of Series B Preferred
Stock. In case the Corporation shall at any time subdivide its
outstanding shares of common stock into a greater number of
shares or shall pay in shares of common stock a dividend on
then outstanding shares of common stock, the number of shares
of common stock into which the Series B Preferred Stock is
convertible shall be proportionately increased and,
conversely, in case the Corporation shall at any time combine
its outstanding shares of common stock into a smaller number
of shares, the number of shares of common stock into which the
Series B Preferred Stock is convertible shall be
proportionately reduced. If any capital reorganization or
reclassification of the capital stock of the Corporation, or
any consolidation or merger of the Corporation with another
corporation, shall be effected, the holder of Series B
Preferred Stock shall thereafter be entitled upon the exercise
of conversion rights to receive the number and kind of shares
of stock, securities or assets which the holder would have
been entitled to receive in connection with such
reorganization, recapitalization, merger or consolidation if
he had been a holder of the number of shares of common stock
of the Corporation issuable upon the conversion of his Series
B Preferred Stock immediately prior to the time such
reorganization, recapitalization, merger, or consolidation
became effective. No adjustment shall be made upon any
conversion on account of any dividends accrued on the shares
of Series B Preferred Stock surrendered for conversion or on
account of any dividend on the shares of common stock issued
on such conversion.
(b) In order to convert shares of Series B Preferred
Stock into shares of common stock, the holder thereof shall
surrender at the office of the Corporation the certificate or
certificates therefor, duly endorsed to the Corporation or in
blank, and give written notice at such office that he elects
to convert such shares of Series B Preferred Stock which shall
be deemed to have been converted as of the date (hereinafter
called the "Conversion Date") of the surrender of such shares
for conversion as provided above, and the person or persons
entitled to receive the shares of common stock issuable upon
such conversion shall be treated for all purposes as the
record holder or holders of such common stock on such date. As
soon as practicable on or after the Conversion Date, the
Corporation will deliver at such office a certificate or
certificates for the number of full shares of common stock
issuable on such conversion, together with cash in lieu of any
fraction of a share, as hereinafter provided, to the persons
entitled to receive the same. In case shares of Series B
Preferred Stock are called for redemption, the right to
convert such shares shall cease and terminate at the close of
business on the date fixed for redemption, unless default
shall have been made in the payment of the redemption price.
(c) No fractional shares of common stock shall be
issued upon conversion, but the Corporation shall pay a cash
adjustment in respect of any fraction of a share which would
otherwise be issuable, in an amount equal to the same fraction
of the market price per share of common stock at the close of
business on the Conversion Date. The market price per share
shall be, (i) if traded on the over-the-counter market, the
mean between the closing bid and asked quotations, or (ii) if
traded on a national securities exchange, the closing sale
price, or (iii) if traded on both the over-the-counter market
and an exchange, the mean between the prices determined in
accordance with clauses (i) and (ii) of this sentence.
(e) Provisions Generally Applicable to Capital Stock.
(A) No holder of shares of the Capital Stock of any
class of the Corporation shall have any preemptive or preferential
right of subscription to any shares of any class of stock of the
Corporation, whether now or hereafter authorized, or to any obligations
convertible into stock of the Corporation, issued or sold, nor any
right of subscription to any thereof other than such, if any, as the
Board of Directors, in its discretion, may from time to time determine
and at such price as the Board of Directors may, from time to time,
fix; and any shares of stock or convertible obligations which the
Corporation may determine to offer for subscription to the holders of
stock may, as the Board of Directors shall determine, be offered to
holders of any class or classes of stock exclusively or to holders of
all classes of stock, and if offered to more than one class of stock,
in such proportions as between the said classes of stock as the Board
of Directors in its discretion may determine.
As used in this Section (e) the expression
"convertible obligations" shall include any notes, bonds or other
evidences of indebtedness to which are attached or with which are
issued warrants or other rights to purchase stock of the Corporation of
any class or classes; and the Board of Directors is hereby expressly
authorized, in its discretion, in connection with the issue of any
obligations or stock of the Corporation (but without intending hereby
to limit its general power as to do in any other cases) to grant rights
or options to purchase stock of the Corporation of any class upon such
terms and during such periods as the Board of Directors shall
determine, and to cause such rights or options to be evidenced by such
warrants or other instruments as it may deem advisable.
(B) The Board of Directors may authorize the purchase of
shares of Class A Common Stock or Class B Common Stock or any other
class of stock or any combination of classes without regard to
differences among the classes in price or other terms upon which such
shares may be purchased.
FOURTH: Upon the filing of this certificate by the Department of State,
the 2,796,555 issued shares and the 7,203,445 unissued shares of the Corporation
shall be changed into (1) 2,796,555 issued shares and 7,203,445 unissued shares
of Class A Common Stock and (2) 2,796,555 issued shares and 7,203,445 unissued
shares of Class B Common Stock at the rate of one share of Class A Common Stock
and one share of Class B Common Stock for each current outstanding share of
Common Stock.
FIFTH: Article 7 of the certificate of incorporation of the Corporation
is amended to change the office of the Corporation. To accomplish this, Article
7 of the certificate of incorporation is hereby amended to read in its entirety
as follows:
7. The office of the Corporation shall be located in
the Village of Pittsford, County of Monroe, New York, and the address
to which the Secretary of State shall mail a copy of process in any
action or proceeding against the Corporation that may be served upon
the Secretary of State is 1162 Pittsford-Victor Road, Pittsford, New
York 14534.
<PAGE>
SIXTH: The foregoing amendments of the certificate of incorporation
were authorized at a meeting of the Board of Directors, followed by the votes
cast in person or by proxy of the holders of record of a majority of the
outstanding shares entitled to vote at the annual shareholders meeting of the
Corporation, except that the amendment contained in Article FIFTH hereof was not
voted upon by shareholders.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment this 5th day of August 1995 and affirm that the statements made herein
are true under penalty of perjury.
Kraig H. Kayser, President
Jeffrey L. Van Riper, Secretary
<PAGE>
Exhibit 3.3
BY-LAWS
OF
SENECA FOODS CORPORATION
Effective November 1, 1963
Amended November 4, 1972,
November 22, 1975,
December 11, 1982,
December 5, 1992
and
August 5, 1995
<PAGE>
MEETING OF STOCKHOLDERS
ANNUAL MEETINGS
The annual meeting of Stockholders for the election of
Directors, considering reports made to the shareholders, and the transaction of
other business as may properly come before the meeting shall be held within or
without the State of New York at a specific place and date that is not a legal
holiday each year within six months after the close of the Corporation's fiscal
year which shall be determined by the Board of Directors or at such later date
as may be determined by the Board of Directors. (Amended August 5, 1995)
SPECIAL MEETINGS
Special Meetings of Stockholders, other than those regulated
by statute may be called at any time by the President or by a majority of the
Directors, acting with or without a meeting, or by the persons holding 25% of
all the voting power of the corporation unless otherwise specified in the notice
of such meeting.
(Amended December 5, 1992)
No business other than that specified in the notice shall be
transacted at any special meeting of stockholders, except upon the unanimous
consent of all the stockholders entitled to notice thereof.
NOTICE OF MEETINGS
The Secretary shall serve personally or by mail, not less than
ten (10) nor more than fifty (50) days before each meeting, a written notice of
every meeting, whether annual or special, upon such person who appears upon the
books of the corporation to be a holder of capital stock of the corporation. If
mailed, the notice shall be addressed to the stockholder at his address as it
appears on the Stock Book of the corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case to the address designated in such
request.
The notice of meeting shall state the place of the meeting,
the date, the hour thereof, the purpose of the meeting, and an indication that
it is being issued by or at the direction of the person or persons calling the
meeting.
WAIVER
Notwithstanding any provision of the foregoing Sections 1 and
2, a meeting of the stockholders may be held at any time and at any place and
any action may be taken thereat, if notice and time of notice be waived in
writing by every stockholder having the right to vote at such meeting. (Amended
December 5, 1992)
QUORUM
The holders of shares entitling them to exercise a majority of
the voting power of the corporation shall constitute a quorum for any meeting of
stockholders, provided that when a specified item of business is required to be
voted on by a class or classes, the holders of a majority of the shares of such
class or classes shall constitute a quorum for the transaction of such specified
item of business. Provided further that any meeting for the determination of the
number of Directors, or the election of Directors, or for consideration and
action upon reports required to be laid before such meeting, the holders of
shares entitled to exercise a 33 1/3% of the voting power of the corporation
shall constitute a quorum. At any meeting of stockholders where a quorum is
present, the meeting may be adjourned, from time to time, without notice other
than by announcement at such meeting.
CLOSING STOCK BOOKS
The Directors may prescribe a period not exceeding fifty days
and not less than ten days prior to the date of any meeting of the stockholders
or prior to the date fixed for any payment of any dividend or distribution or
allotment of rights or prior to the last day on which the consent or dissent of
the stockholders may be effectively expressed for any purpose without a meeting,
during which no transfer of stock on the books of the Corporation may be made.
VOTING
At all meetings of stockholders, all questions, in the absence
of a contrary statutory or By-Law provision, shall be determined by majority
vote of the stockholders present in person or by proxy, and each stockholder or
proxy shall have one vote for each share held by him except as otherwise
provided in the certificate of incorporation. All questions, except the question
of amendment to the By-laws, the election of Directors and all such other
questions the manner of deciding which is specially regulated by statute, shall
be determined by a viva voce vote of the stockholders present in person or by
proxy; provided, however, that any qualified voter may demand a written vote, in
which event it shall immediately be taken. A written vote shall be by ballot and
each ballot shall state the name of the stockholder voting and the number of
shares voted, and if such ballot be cast by proxy, the name of the proxy. Every
pledgor of stock standing in his name on the books of the corporation shall be
deemed the owner thereof for the purpose of voting. (Amended August 5, 1995)
In all elections of directors of the corporation, each holder
of capital stock of the corporation shall be entitled to vote the shares of each
class or series of stock in the manner and to the extent, if any, as is set
forth in the corporation's Certificate of Incorporation as amended from time to
time. Each share entitled to vote may be voted for as many persons as there are
directors to be elected. No cumulative voting for directors shall be permitted.
(Amended December 5, 1992)
Every proxy must be dated and executed in writing by the
stockholder himself or by his duly authorized attorney, and filed with the
Secretary. No proxy shall be valid after the expiration of six months from the
date of its execution, unless it shall specify therein the length of time it is
to continue in force, which shall be for a limited period. Every proxy shall be
revocable at the pleasure of the shareholder executing it, except in those cases
where a irrevocable proxy is provided by law. (Amended December 5, 1992)
If shares are registered in the name of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the secretary of the
corporation is given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following
effect:
1. If only one votes, the vote shall be accepted by
the corporation as of the vote of all; 2. If more
than one vote, the act of the majority so voting
shall be accepted by the corporation as the vote of
all; 3. If more than one vote, but the vote is
equally divided on any particular matter, the vote
shall be accepted by the corporation as a
proportionate vote of the shares: unless the
corporation has evidence, on the record of
shareholders or otherwise, that the shares are held
in a fiduciary capacity. Nothing in this paragraph
shall alter any requirement that the exercise of
fiduciary powers be by act of a majority contained in
any law applicable to such exercise of powers
(including section 10-10.7 of the Estates, Powers and
Trusts Law of New York); and 4. The foregoing
provisions as to voting are subject to any provision
of the Business Corporation Law of New York which
requires a different method of voting or an order of
a court of competent jurisdiction specifying the
method and effect of voting of specific shares of
stock.
(Amended December 5, 1992)
ORDER OF BUSINESS
At all meetings of stockholders the following order of
business shall be observed so far as consistent with the purposes of the
meeting:
1. Roll call.
2. Proof of notice of meeting or waiver thereof.
3. Statement by Secretary of the number of
shares of stock represented in person or by
proxy, and the determination of the presence
of a quorum.
4. Reading and approval of Minutes of preceding meeting.
5. Reports of Officers and Committees.
6. Election of Directors at Annual Meeting.
7. Voting on other Proposals Submitted for Shareholder Vote.
8. Unfinished business.
9. New business.
10. Adjournment.
(Amended December 5, 1992)
BOARD OF DIRECTORS
NUMBER AND QUALIFICATIONS
The business and property of this corporation shall be managed
and controlled by a Board of Directors who shall be elected as provided in these
By-Laws. Each Director must be at least twenty-one years of age. The Board of
Directors shall consist of such number, not less than three (3) nor more than
twenty-one (21), as is fixed from time to time by the Board of Directors.
(Amended November 4, 1972)
MANNER OF ELECTION
The persons receiving the greatest number of votes at each
meeting of Stockholders at which Directors are elected shall be the Directors.
TERM OF OFFICE
The Board of Directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of one class
expiring each year. At the annual meeting of shareholders in 1975, directors of
the first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting; directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual meeting; and
directors of the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. At each annual meeting of shareholders
after 1975, successors to the directors whose terms shall then expire shall be
elected to hold office for terms expiring at the third succeeding annual
meeting. When the number of directors is changed, any newly created
directorships or any decrease in directorships shall be so apportioned among the
three classes as to make all classes as nearly equal in number as possible;
except that, when the number of directors is increased by the Board of Directors
and any newly created directorships are filled by the Board of Directors, there
shall be no classification of the additional directors until the next annual
meeting of shareholders. (Amended December 5, 1992)
DUTIES AND POWERS
The Board of Directors shall have the control and management
of affairs of the corporation. The Directors shall in all cases act as a Board
of Directors, regularly convened, and in the transaction of business, the acts
of a majority of a quorum present at a meeting duly assembled shall be the act
of the Board. The Directors may adopt such rules and regulations for the conduct
of their meetings and the management of the corporation as they deem proper, not
inconsistent with law or these By-Laws. (Amended December 5, 1992)
MEETINGS
The Board of Directors shall meet for the election or
appointment of officers and for the transaction of any other business as soon as
practicable after the adjournment of the Annual Meeting of the Stockholders, and
other regular meetings of the Board shall be held at such times as the Board,
from time to time, may determine.
Special Meetings of the Board of Directors may be called by
the President at any time; and he must, upon the written request of any two
Directors, call a special meeting to be held not more than five days after the
receipt of said request.
NOTICE OF MEETINGS
No notice need he given of the first meeting of the Board
after an election, or of any other regular meeting of the Board. However, notice
of other meetings shall be given by service upon each Director in person or by
mailing to him at his post office address as it appears upon the books of the
corporation, at least five (5) days before the date therein designated for such
meeting including the day of mailing, a written or printed notice thereof,
specifying the time, place and purpose of the meeting. No business other than
that specified in the notice shall be transacted at any special meeting. At any
meeting at which all of the Directors shall be present, although held without
notice, any business may be transacted as if the meeting had been duly called.
(Amended December 5, 1992)
PLACE OF MEETING
Regular and Special Meetings of the Board of Directors may be
held at such times and places as may be provided for in the By-Laws or
resolutions adopted by the Board of Directors.
Any one or more members of the Board of Directors may
participate in a regular or Special meeting of the Board of Directors or a
meeting of any committee of the Board of Directors by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
(Amended December 11, 1982)
QUORUM
At any meeting of the Board of Directors, a majority of the
Board shall be necessary to constitute a quorum for the transaction of business.
However, should a quorum not be present, a lesser number may adjourn the meeting
to some future time, not more than fourteen (14) days later. (Amended December
5, 1992)
VOTING
All questions to be determined by the Board of Directors shall
be determined by a majority vote of the Directors present at the meeting.
VACANCIES
Any vacancy occurring in the Board of Directors by reason of
death, resignation, removal without cause, or otherwise may be filled by a
majority vote of the remaining Directors. The Director thus elected to fill a
vacancy shall hold office until the next meeting of stockholders at which the
election of directors is in the regular order of business, and until his
successor has been elected and qualified; and the Director thus elected by the
stockholders shall hold office for the remainder of the term to which his
predecessor, whose vacancy he is filling, was elected. (Amended November 22,
1975)
REMOVAL OF DIRECTORS
Any Director may be removed either with or without cause at
any time by a vote of the stockholders holding two-thirds (2/3) of the stock
then issued and outstanding and which was entitled to vote for the election of
the Directors sought to be removed at any Special Meeting called for that
purpose. (Amended November 22, 1975)
RESIGNATION
Any Director may resign his office at any time; such
resignation to be made in writing and to take effect immediately without
acceptance.
COMPENSATION
The Directors will receive such compensation for each meeting
of the Board or any committee which they attend as may be, from time to time,
set by the Board of Directors.
INTERESTED DIRECTOR
No contract or other transaction between the corporation and
one or more of its directors, or between the corporation and any other
corporation, firm, association, or other entity in which one or more of its
directors are directors or officers or are financially interested, shall be
either void or voidable for this reason alone or by reason that such director or
directors are present at the meeting of the Board of Directors or of a committee
thereof which approves such contract or transaction, or that his or their votes
are counted for such purposes:
1. If the material facts as to such common directorship,
officership or financial interest are disclosed in
good faith or known to the Board of Directors or
committee, and the Board of Directors or committee
approves such contract or transaction by a vote
sufficient for such purpose without counting the vote
or votes of such interested director or directors or,
if the votes of the directors who are not interested
are insufficient to constitute an act of the Board of
Directors or the committee, by unanimous vote of the
directors who are not interested;
2. If the material facts as to such common directorship,
officership or financial interest are disclosed in
good faith or known to the shareholders entitled to
vote thereon, and such contract or transaction is
approved by vote of the shareholders; or
3. If the contract or transaction is fair and reasonable
as to the corporation at the time it is approved by
the Board of Directors or committee thereof or the
shareholders.
Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of
Directors or of a committee which approves such contract or
transaction. (Amended December 5, 1992)
OFFICERS AND QUALIFICATIONS
The officers of the corporation shall consist of a President,
a Secretary, and a Treasurer, and such other officers as the Board of Directors,
from time to time, elect or appoint. Such other officers may be the following:
Chairman of the Board Vice Chairman of the Board Executive
Vice President One or more Senior Vice Presidents One or more
other Vice Presidents Controller One or more Assistant
Secretaries One or more Assistant Treasurers
as the Board may, from time to time, determine. (Amended December 5, 1992)
Any two offices, except the offices of President and
Secretary, President and Executive Vice President, President and Senior Vice
President, President and any other Vice President, Secretary and Assistant
Secretary, or Treasurer and Assistant Treasurer, may be held by the same person.
(Amended December 5, 1992)
ELECTION
All officers of the corporation shall be elected annually by
the Board of Directors at its meeting held immediately after the Annual meeting
of Stockholders.
TERM OF OFFICE
All officers shall hold office for one year or until their
successors are duly chosen and qualified, or until removed as hereinafter
provided.
REMOVAL OF OFFICERS
Any officer may he removed at any time either with or without
cause by the majority vote of the Board of Directors.
CHAIRMAN AND VICE CHAIRMAN OF THE BOARD
The Chairman of the Board and the Vice Chairman, in the
absence of the Chairman, shall preside at all meetings of the Board of Directors
and shall have such other powers and duties as may be prescribed by the Board of
Directors, provided such officers exist. The Chairman and the Vice Chairman, in
the absence of the Chairman, shall have the authority to preside at all meetings
of the stockholders or to designate the President to so preside. (Amended
December 5, 1992)
PRESIDENT
The President, at the Chairman or Vice Chairman of the Board's
discretion, shall preside at all meetings of the stockholders and at any
meetings of the Board. Subject to the directions of the Board of Directors, the
President shall have general executive supervision over the property, business
and affairs of the corporation. He may execute all authorized deeds, mortgages,
bonds, contracts and other obligations in the name of the corporation and shall
have such other specific powers and duties as may be prescribed by the Board of
Directors. (Amended December 5, 1992)
VICE PRESIDENT
The Vice Presidents in the order designated in Section 1 of
this Article or by resolution of the Board of Directors shall perform all the
duties of the President in case of the absence or disability of the latter or
when circumstances prevent the latter from acting, and shall have such other
powers and perform such other duties as the Board of Directors may prescribe.
The power of the Vice Presidents to execute all authorized deeds, mortgages,
bonds, contracts and other obligations in the name of the Corporation shall be
co-extensive with the like powers of the President and any such instrument so
executed by any of the Vice Presidents shall be as valid and binding as though
executed by the President. (Amended December 5, 1992)
SECRETARY
The Secretary shall keep the minutes of all meetings of the
stockholders, the Board of Directors, and committees. He shall keep such books
as may be required by the Board of Directors, shall have charge of the seal of
the corporation, shall give all notices of stockholders' and directors' meetings
required by law or by these By-Laws or otherwise, and shall have such other
powers and duties as the Board of Directors may prescribe. (Amended December 5,
1992)
TREASURER
The Treasurer shall receive and have custody of all money,
bills, notes, bonds, securities and other similar property belonging to the
corporation and shall hold the same, subject to the order of the Board of
Directors. He shall keep accurate financial accounts and hold the same open for
inspection and examination by the Board. He may sign checks and execute
contracts and other obligations of the corporation as are incident to his office
or that may be properly required of him by the Board of Directors. On the
expiration of his term of office, he shall turn over to his successor or to the
Board of Directors all books, papers, money and other property of the
corporation in his hands.
OTHER OFFICERS
The Controller, Assistant Secretaries, Assistant Treasurers,
if any, and other officers that the Board of Directors may elect shall have such
powers and duties as the Board of Directors may prescribe.
<PAGE>
DELEGATION OF DUTIES
The Board of Directors is authorized to delegate the duties of
any officer to any other officer and generally to control the action of the
officers and to require the performance of duties in addition to those mentioned
herein.
<PAGE>
VACANCIES
A vacancy in any office, however created, may be filled by
election by the Board of Directors.
COMPENSATION
Compensation of officers and employees of the corporation or
the method of fixing such compensation shall be determined by or pursuant to the
authority conferred by the Board of Directors or any committee of the Board of
Directors. Such compensation may be by way of fixed salary or on the basis of
earnings for the corporation or any combination thereof or otherwise as may be
determined by the Board of Directors or any committee of the Board; any member
of the Board or any member of such committee may participate in that
determination. (Amended December 5, 1992)
CAPITAL STOCK
CERTIFICATES
The capital stock of the corporation shall be represented by
certificates approved by the Directors and signed by the President and
countersigned by the Secretary or any Assistant Secretary and sealed with the
seal of the corporation. The certificates shall be numbered and registered in
the order in which they are issued; they shall be issued in consecutive order
and the records of the corporation shall contain the number of each certificate,
the name(s) and address(es) of the person(s) owning the shares represented by
each such certificate, the number and class of such shares, and the date of
issue to the owner(s) of record. The records shall be in written form or in any
other form capable of being converted to written form within a reasonable time.
Each certificate representing shares shall state upon the face thereof:
1. That the corporation is formed under the laws of New York;
2. The name of the person or persons to whom issued;
3. The number and class of shares and the par value of each
share represented by such certificate or a statement
that the shares are without par value. If preferred
shares are issued or if shares of more than one class
are issued by the corporation, each certificate will also
set forth a full statement of the designations, relative
rights, preferences and limitations of the shares of
each class or, in the alternative, each certificate will
set forth that the corporation will furnish to any
shareholder upon request and without charge a full
statement of the designations, relative rights,
preferences and limitations of the shares of each
class.
(Amended December 5, 1992)
SUBSCRIPTIONS
Subscriptions to the capital stock shall be paid at such time
or times and in such statements, if any, as the Board of Directors may, by
resolution, require. If default shall be made in the payment of any installment
as required by such resolution, the Board may declare a forfeiture of the
subscriptions, provided, however, that no forfeiture of the subscriptions shall
be declared as against any subscriber unless the amount due thereon shall remain
unpaid for a period of thirty days after written demand has been made therefor.
Upon forfeiture of the subscription, if at least fifty percent of the
subscription price has been paid, the shares subscribed for shall be sold for
cash at a price at least sufficient to pay the full balance owed by the
delinquent subscriber plus the expenses incidental to such sale, and any excess
of net proceeds realized over the amount owed on such shares shall be paid to
the delinquent subscriber or to his legal representative. If no prospective
purchaser offers a cash price sufficient to pay the full balance owed by the
delinquent subscriber plus the expenses incidental to such sale, or if less than
fifty percent of the subscription price has been paid, the shares subscribed for
shall be cancelled and restored to the status of authorized but unissued shares
and all previous payments thereon shall be forfeited to the corporation and
transferred to capital surplus. (Amended December 5, 1992)
TRANSFER OF STOCK
The stock of the corporation shall be assignable and
transferable on the books of the corporation only by the person in whose name it
appears on such books or by his duly authorized attorney, upon surrender of the
certificates properly endorsed. In case of transfer by power of attorney, the
power of attorney, duly executed and acknowledged, shall be deposited with the
Secretary. In all cases of transfer, the former certificate must be surrendered
and canceled before a new certificate is issued. The Board of Directors may make
such other regulations as it deems expedient with respect to the transfer of
shares. (Amended December 5, 1992)
CANCELLATION OF CERTIFICATES
All certificates of stock exchanged or returned to the
corporation for transfer or cancellation shall be marked "cancelled" with the
date of cancellation by the Secretary, and shall be immediately pasted in the
certificate book opposite the memorandum of their issue.
LOST, DESTROYED, STOLEN OR MUTILATED CERTIFICATES
In the case of a lost, destroyed, stolen or mutilated
certificate of stock the corporation must be immediately notified upon the
discovery of such loss. Upon filing an affidavit of proof of loss with the
Secretary of the corporation, the Board of Directors may issue a new certificate
upon the condition that surety bond satisfactory to the Board is given to
indemnify the corporation against loss due to the issuance of the new
certificate.
HOLDERS OF RECORD
Unless otherwise provided by law or by the Certificate of
Incorporation or other certificate filed pursuant to law, the Board of Directors
may prescribe a period not exceeding fifty (50) days and not less than ten (10)
days preceding the date fixed for the payment of any dividend or for the
delivery of evidences of rights or for any other distribution allowed by law
during which no transfer of stock on the books of the corporation shall be made;
or, in lieu of prohibiting the transfer of stock, the Board of Directors may fix
in advance a day and hour, not exceeding fifty (50) days and, not less than ten
(10) days prior to the date fixed for the payment of any dividend or for the
delivery of any evidence of rights or other distribution allowed by law, as the
record date for the determination of the stockholders entitled to receive any
such dividend, rights or distribution, as the case may be. (Amended December 5,
1992)
DIVIDENDS
DECLARATION OF DIVIDENDS
The Board of Directors at any regular or special meeting may
declare dividends payable out of the surplus profits of the corporation
whenever, in the exercise of their absolute discretion, they may deem such
declaration advisable. The Board of Directors of the corporation shall not
declare or pay any dividend when the corporation is insolvent or would thereby
be made insolvent or when the declaration or payment would be contrary to any
provision of the Certificate of Incorporation. Dividends may be declared and
paid and other distributions made out of surplus only, so that the net assets of
the corporation remaining after such declaration, payment or distribution shall
be at least equal to its stated capital. In case any such dividend shall be paid
or any such distribution of assets made, the Directors in whose administration
the same shall have been declared or made shall be liable jointly and severally
to the extent set forth in Section 719 of the Business Corporation Law of New
York ("Section 719") by reason of such dividend or distribution except to the
extent that, as set forth in Section 719, they submit a dissent or overcome any
presumption of concurrence in the action of the Directors.
(Amended December 5, 1992)
BILLS, NOTES, ETC.
EXECUTION
All bills payable, notes, checks, drafts, warrants or other
negotiable instruments of the corporation shall be made in the name of the
corporation and shall be signed by such officer or officers as the Board of
Directors shall, from time to time, by resolution direct.
No officer or agent of the corporation, either singly or
jointly with others, shall have the power to make any bills payable, note,
check, draft or warrant or other negotiable instrument or endorse the same in
the name of the corporation, or contract or cause to be contracted any debt or
liability in the name and on behalf of the corporation, except as herein
expressly prescribed and provided.
COMMITTEES
The Board of Directors may at any time appoint from its
members an executive, audit or any other committee or committees, consisting of
such number of members as the Board may deem advisable, except that such number
shall not be less than three, each of which members shall hold office during the
pleasure of the Board; provided, however, that the President, if a member of the
Board of Directors, shall be a member of and Chairman of the executive
committee. All such committees shall have such powers as may, from time to time,
be delegated by the Board of Directors except that no such committee shall have
authority as to the following matters:
1. The submission to shareholders of any action that
needs shareholders' authorization.
2. The filling of vacancies in the Board of Directors or
in any committee.
3. The fixing of compensation of the Directors for
serving on the Board or any committee.
4. The amendment or repeal of the By-Laws, or the
adoption of new By-Laws.
5. The amendment or repeal of any resolution of the
Board which by its terms shall not be so amendable
or repealable.
(Amended December 5, 1992)
The executive committee shall possess and may exercise all the
power of the Board of Directors in the management and direction of the affairs
of the corporation in all cases in which specific direction shall not have been
given by the Board of Directors.
Subject to the aforesaid exceptions, any persons dealing with
the corporation shall be entitled to rely upon any act of or authorization of
any act by such committee to the same extent as if such action had been taken or
authorized by the Board of Directors. Provided, however, that subject to the
rights of third persons, as aforesaid, any action taken or authorized by such
committee shall be subject to revocation, revision or alteration by the Board of
Directors. Any committee may act by a majority of its members, and may prescribe
its own rules for calling and holding meetings, or for acting without a meeting
in its method of procedure, subject, however, to any rules prescribed by the
Board of Directors. Each committee shall keep full and complete records of all
meetings and actions.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
RIGHT OF STATUTORY INDEMNIFICATION
The corporation shall have the authority to indemnify, to the
fullest extent permitted by the New York Business Corporation Law, any person
made or threatened to be made a party to any action or proceeding, including an
action by or in the right of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which any director, officer or
employee of the corporation served in any capacity at the request of the
corporation, by reason of the fact that he, his testator or intestate, is or was
a director or officer of the corporation or is or was serving such other
enterprise at the request of the corporation. Such indemnification may be
authorized pursuant to the terms and conditions of (i) a resolution of
shareholders, (ii) a resolution of the Board of Directors, (iii) an agreement
providing for such indemnification or (iv) any judicial or other legal authority
which entitles the director, officer or employee to such indemnification.
(Amended December 5, 1992)
OFFICE AND BOOKS
OFFICES
The principal office of the corporation shall be located at
Pittsford, New York. (Amended December 5, 1992)
The Board of Directors may, from time to time, establish other
offices of the corporation or branches of its business at whatever place or
places it deems to be expedient.
BOOKS
The corporation shall keep at its office correct books of
accounts of all its business and transactions, and shall keep a book to be known
as the "Stock Book" at its office in this State or at another designated office
of the corporation or in the office of its Transfer Agent, which book will
contain the names, alphabetically arranged for each class of stock, of all
persons who are stockholders of the corporation, showing the class and number of
shares of stock held by them respectively, their address and the time when they
became the owner thereof. The information in the Stock Book may be in written
form or in any other form capable of being converted to written form within a
reasonable time. The Stock Book of the corporation shall be open daily during
usual business hours, for inspection upon at least five days' prior written
demand by any person who shall have been a stockholder of record in the
corporation for at least six months immediately preceding his demand or by any
person holding, or thereunto authorized in writing by the holder of, at least
five percent of any class of the outstanding shares; provided (a) that such
inspection shall not be for the purpose of communicating with stockholders in
the interest of a business or object, other than the business of the
corporation, and (b) that such stockholders or persons have not within five
years sold or offered for sale any list of stockholders of the corporation or
any other corporation or aided or abetted any person in procuring any stock list
for any such purpose; and provided, further, that such inspection may be denied
to any such stockholder or any other person unless such stockholders or other
person furnishes to the corporation a written statement that such inspection is
desired only for the purpose of communicating with stockholders in the interest
of a business or object of the corporation and that such stockholder or other
person has not, within five years immediately preceding the date of such written
statement, sold or offered for sale any list of stockholders of the corporation
or any other corporation or aided or abetted any person in procuring any stock
list for any such purpose. Persons so entitled to inspect the Stock Book may
make extracts therefrom. (Amended December 5, 1992)
FINANCIAL STATEMENT TO STOCKHOLDERS
Any person who shall have been a shareholder of record for at
least six months immediately preceding his request, or any person holding, or
thereunto authorized in writing by the holders of, at least five percent of any
class of the outstanding shares, may make a written request to the Treasurer for
an annual balance sheet and profit and loss statement for the preceding fiscal
years and the most recent interim balance sheet or profit and loss statement
which has been distributed to shareholders or otherwise made available to the
public. The Treasurer shall provide such statements and deliver them to the
person mailing the request within thirty days thereafter and keep on file in the
office of the corporation for twelve (12) months thereafter a copy of such
statements given.
CORPORATE SEAL
The Seal of the corporation shall be circular in form and
shall have inserted thereon the name of the corporation, the state of its
organization (New York), the year of its creation (1949), and the words
"Corporate Seal".
FISCAL YEAR AND AUDIT
FISCAL YEAR
The fiscal year of the corporation shall commence on the 1st
day of August of each year and end on the 31st day of July of each following
year; or it shall encompass such other twelve month period (after adjustment for
any short period caused by a change) as may be fixed from time to time by the
Board of Directors.
(Amended December 5, 1992)
AUDIT
At least once after the close of every fiscal year and as soon
thereafter as is practicable, there shall be an audit of the books and accounts
of the corporation and the directors shall be furnished an Annual Report on the
basis of such audit.
AMENDMENTS
The By-Laws of the corporation may be amended at a meeting of
stockholders by the vote of the holders of two-thirds (2/3) of the shares
present and entitled to vote at the meeting. (Amended November 22, 1975)
GENDER
Section 1
For the purpose of these By-Laws, unless the context requires
otherwise, wherever the masculine gender is used, it shall also be deemed to
mean the feminine or neuter gender.
<PAGE>
<TABLE>
EXHIBIT 11
SENECA FOODS CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(In thousands except share data)
<CAPTION>
Three Months Ended
------------------
7/1/95 6/25/94
______ _______
<S> <C> <C>
Net Earnings Applicable to Common Stock:
Net Earnings $ 55 $ 1,461
Deduct Preferred Cash Dividends 6 6
------- -----
Net Earnings Applicable to
Common Stock $ 49 $ 1,455
= == = =====
Weighted Average Common
Shares Outstanding 2,796,555 2,797,305
Effect of Common Stock Equivalent - -
_________ _________
Weighted Average Common Shares Outstanding
for Primary Earnings per Share 2,796,555 2,797,305
========= =========
Primary and Fully Diluted
Earnings Per Share $ .02 $ .52
= === = ===
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
Commercial and Industrial Companies
Article 5 of Regulation S-X
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1996
<PERIOD-END> JUL-01-1995
<CASH> 2331
<SECURITIES> 0
<RECEIVABLES> 30684
<ALLOWANCES> 240
<INVENTORY> 165023
<CURRENT-ASSETS> 218238
<PP&E> 323420
<DEPRECIATION> 111406
<TOTAL-ASSETS> 440373
<CURRENT-LIABILITIES> 117955
<BONDS> 221192
<COMMON> 1880
0
70
<OTHER-SE> 86933
<TOTAL-LIABILITY-AND-EQUITY> 440373
<SALES> 81945
<TOTAL-REVENUES> 81945
<CGS> 68529
<TOTAL-COSTS> 68529
<OTHER-EXPENSES> 7783
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5545
<INCOME-PRETAX> 88
<INCOME-TAX> 33
<INCOME-CONTINUING> 55
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 55
<EPS-PRIMARY> 0.02
<EPS-DILUTED> 0.02
<FN>
Other-Expenses is Selling, General and Administrative Expenses.
</FN>
</TABLE>
